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Amer. Pet Motels v. Chicago Vet. Med. Ass'n





APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY SCOTILLO, Judge, presiding.


Rehearing denied June 3, 1982.

This is an action for libel and slander. The plaintiffs are American Pet Motels, Inc. (APM), and Robert Leeds and John Zevchak, two of APM's officers. The alleged slander was spoken by defendant M.A. Cosnow, a veterinarian. The alleged libel was published by defendant Chicago Veterinary Medical Association (CVMA). Plaintiffs also claim that defendants have tortiously interfered with plaintiffs' business relationships and have violated the Uniform Deceptive Trade Practices Act. Plaintiffs seek damages and injunctive relief. The trial court granted summary judgment for both defendants. Plaintiffs appeal.

APM operates a pet boarding service in Prairie View, Illinois. Defendant Cosnow is a veterinarian and member of the CVMA. On January 25, 1977, defendant Cosnow, acting in his capacity as chairman of the Animal Breeder-Dealer Liaison Committee, addressed the executive committee of the CVMA. Cosnow stated:

"It has been reported to me that lay personnel at the American Pet Motels diagnosed and treated two cats for a parasite infection while they were being boarded at the facility."

One of Cosnow's functions as Animal Breeder-Dealer Liaison was to report to the CVMA instances of unauthorized practice of veterinary medicine.

The CVMA publishes a regular newsletter for distribution to its members. The newsletter contains, among other things, the minutes of meetings of the CVMA's executive committee. The February 1977, edition of the newsletter contained the minutes of the January 25, 1977, meeting of the executive committee. In a section titled "COMMITTEE REPORTS," the newsletter contained this passage:

"ANIMAL BREEDER-DEALER LIAISON — Dr. Cosnow reported an incident concerning the American Pet Motel in which lay personnel diagnosed and treated a cat for a "parasite infection" while being boarded by that facility. Dr. Ver Meulen moved that Dr. Cosnow send a letter to Dr. Bromwell of the Illinois Dept. of Agr. concerning this incident, and that copies be sent to the American Pet Motel and to the states [sic] attorney. Motion seconded and carried."

Despite the executive committee's resolution to act on this report, no action was taken and no letters were sent.

Plaintiffs contend that Cosnow's statement is defamatory in that it impliedly charges plaintiffs with a violation of law (see Ill. Rev. Stat. 1977, ch. 111, par. 6924 (practice of veterinary medicine without a license is a Class B misdemeanor)) and prejudices APM in the conduct of its business. The trial court dismissed plaintiffs' complaint, relying on the innocent construction rule. (See John v. Tribune Co. (1962), 24 Ill.2d 437, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L.Ed.2d 114, 83 S.Ct. 148.) Plaintiffs contend on appeal that Cosnow's statement is not susceptible of an innocent construction and, alternatively, if the innocent construction rule does apply, it only renders the statement non-actionable as libel *fn1 per se. In plaintiffs' view, the statement remains actionable as libel per quod. Plaintiffs also contend that the innocent construction rule does not apply to causes of action under the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 311 et seq.) and to plaintiffs' claim of tortious interference with prospective advantage.

Words are libelous per se if they are "so obviously and naturally hurtful to the person aggrieved that proof of their injurious character can be, and is, dispensed with." (Reed v. Albanese (1966), 78 Ill. App.2d 53, 58, 223 N.E.2d 419.) Libel per se is often described by the categories that defined slander per se at common law. These four categories comprise words that impute (1) commission of a criminal offense, (2) infection with a communicable disease which would exclude one from society, (3) inability to perform or want of integrity in the discharge of duties of office or employment, and (4) words that prejudice a person in his profession or trade. (Kirk v. Village of Hillcrest (1975), 31 Ill. App.3d 1063, 1065, 335 N.E.2d 535.) Words not falling within these categories may be actionable as libel per quod if they are actually defamatory and if specific damage is alleged. See Kirk v. Village of Hillcrest (1975), 31 Ill. App.3d 1063, 1065.

• 1 The statements made by defendants Cosnow and CVMA are not libelous per se. Although the statements indirectly impute the commission of a crime (practicing veterinary medicine without a license, a Class B misdemeanor), this is not the sort of infamous crime that is per se defamatory. (See Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App.2d 154, 160, 221 N.E.2d 516 (the offense charged must be indictable, involve moral turpitude, and be punishable by imprisonment).) While plaintiffs contend that the statements have prejudiced the conduct of their business, defendants' accusation nevertheless falls far short of the essential definition of libel per se. The words are simply not "so obviously and naturally hurtful" that damage to plaintiffs must be presumed.

The possibility of libel per quod remains. The recipients of defendants' communications were veterinarians, a group that could be expected to consider the alleged conduct (lay persons diagnosing and treating sick animals) reprehensible. If plaintiffs show that the statements caused specific pecuniary injury, they have laid the foundation for a claim of libel per quod. Defendants argue, however, that the innocent construction rule must be applied and that the statements can be read in a nondefamatory sense. Plaintiffs contend that the innocent construction rule does not apply to libel per quod.

Our research reveals no Illinois case that has considered this issue. Some Illinois cases contain language that, out of context, appears to support plaintiffs' position. (See, e.g., Springer v. Harwig (1981), 94 Ill. App.3d 281, 283, 418 N.E.2d 870 ("To determine whether language under scrutiny is actionable per se, * * * Illinois courts> have consistently applied the innocent construction rule"); Whitby v. Associates Discount Corp. (1965), 59 Ill. App.2d 337, 341, 207 N.E.2d 482 ("a defamation can never be per se if the words themselves are capable of innocent construction").) Moreover, some Federal courts> sitting in Illinois appear to have accepted the view that language rendered non-actionable per se by the innocent construction rule may nevertheless be actionable per quod. See ...

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