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Moricoli v. P & S Management Co.

OPINION FILED JANUARY 25, 1982.

THOMAS LANE MORICOLI, PLAINTIFF-APPELLANT,

v.

P & S MANAGEMENT CO., INC., DEFENDANT-APPELLEE. — (BARBARA T. HARRISON, A/K/A BARBARA T. REID, COUNTERPLAINTIFF-APPELLEE,

v.

P & S MANAGEMENT CO., INC., COUNTERDEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. JAMES TRAINA, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 8, 1982.

Although the two appeals herein involved are properly consolidated, dictates of clarity require separate handling.

General No. 81-091

Thomas Lane Moricoli (plaintiff) brought an action for slander against James L. Schwartz, Barbara T. Reid, now known as Barbara T. Harrison (Harrison), and P & S Management Co., Inc. (P & S). The allegations of plaintiff's complaint and the alleged defamation are stated in the opinion of this court in Moricoli v. Schwartz (1977), 46 Ill. App.3d 481, 482, 361 N.E.2d 74. This court reversed dismissal of the suit and held use of the word "fag" with reference to plaintiff by defendant Schwartz and by Harrison as agents for P & S was a defamation not susceptible of innocent construction. However, we also held that the alleged defamation did not constitute slander per se so that it was not actionable without proof of special damages.

Pursuant to this reversal, trial by jury was had. The jury returned the following verdicts and judgments were accordingly entered on November 20, 1980:

(1) A verdict in favor of plaintiff and against P & S on slander which assessed plaintiff's damages in accordance with these designations:

"Special damages:" Some illegible numbers immediately following a typewritten dollar sign are stricken out in ink and the number "0" is inserted with the handwritten initials of the jury foreman.

"General damages:" $40,133.00.

(2) Another verdict in favor of plaintiff and against P & S with punitive damages of $52,500.

(3) In a breach of contract claim brought by plaintiff against P & S, the verdict was in favor of the defendant and against the plaintiff.

(4) Another verdict finding in favor of Harrison and against plaintiff on the slander issue.

We should also note the trial court directed a verdict in favor of defendant James Schwartz.

P & S filed a motion for judgment n.o.v. Plaintiff filed a motion for judgment on the verdict. P & S filed an alternative motion for new trial on the ground that the verdicts were against the manifest weight of the evidence.

On December 4, 1980, the trial court entered judgment n.o.v. in favor of P & S on the ground that the jury found no special damages which thus omitted a necessary part of a general verdict in a case of slander per quod and that this finding of no special damages controlled over the verdicts for plaintiff. On December 9, 1980, plaintiff filed a post-trial motion stating in effect that there was no confusion by the jury except "in the `assessment' or distribution of damages only." Alternatively, plaintiff moved for a new trial.

Plaintiff's post-trial motion and defendant's alternative motion for new trial were denied. Plaintiff filed notice of appeal from these final judgments and prayed judgment for the general and punitive damages assessed by the jury. No cross-appeal was filed.

In this court plaintiff urges the trial court improperly granted judgment n.o.v. since that remedy is available only under the evidence weighed according to the Pedrick standard; the trial court improperly treated the situation as though there had been a special interrogatory tendered and the trial court should have made the verdicts conform and ...


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