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Am. Int'l Hospital v. Chicago Tribune Co.

OPINION FILED DECEMBER 20, 1983.

AMERICAN INTERNATIONAL HOSPITAL, PLAINTIFF-APPELLANT,

v.

CHICAGO TRIBUNE COMPANY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Raymond S. Sarnow, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, American International Hospital (Hospital), appeals from an order of the circuit court of Cook County dismissing with prejudice its three count amended complaint for defamation against defendants Chicago Tribune, William Gaines (collectively Tribune) and the Joint Commission on Accreditation of Hospitals (JCAH). The principal issues raised on appeal include whether: the transfer of venue to Cook County was proper; the allegedly libelous article was true; and, the amended complaint states a cause of action for defamation.

For the reasons hereinafter presented, we affirm in part, vacate in part and remand.

On the same day that the disputed article was published, September 19, 1980, the Hospital filed its complaint in the circuit court of Lake County. On November 18, 1980, pursuant to the Tribune's timely motion, the court transferred the cause to the Cook County circuit court. There the circuit court dismissed the complaint but granted the Hospital leave to file an amended complaint. The subject of the original and amended complaint was an article, reproduced as follows:

Count I of the amended complaint alleged, inter alia, that: the Hospital's accreditation with JCAH had been continuously maintained without any interruption from 1976 to the present time; a one-year accreditation may be granted for only three consecutive years; based upon an error in JCAH records, JCAH believed that the Hospital had been granted three prior one-year accreditations consecutively, and on that basis decided not to accredit the Hospital; a decision by the accreditation committee to revoke a hospital's accreditation (preliminary adverse decision) does not become final until 20 days after a hospital receives notice of it and then only if the hospital chooses not to appeal or abandon an appeal; if the hospital appeals the preliminary adverse decision, the hospital's previous accreditation remains in effect while the appeal is pending; *fn1 the Hospital appealed the preliminary adverse decision on September 10, 1980; and on November 4, 1980, the accreditation committee withdrew its preliminary adverse decision and accredited the Hospital for a one-year period.

In addition to the foregoing allegations, count II alleged: prior to the publication of the disputed article, the Tribune published a task force report in which it asserted that the Hospital offered highly suspect and questionable treatment to cancer patients; the publication of the article in dispute was part of a continuing effort of the Tribune to discredit the Hospital; and the article was written and published for the purpose of adding credibility to the prior inaccurate and misleading report. Pursuant to defendants' motion, on March 18, 1982, the amended complaint was dismissed with prejudice. This appeal followed.

I

• 1 The Hospital challenges the Lake County court order transferring venue to Cook County. The Tribune responds that, since the Hospital's notice of appeal cites neither the order transferring venue nor the Lake County circuit court, it violates Supreme Court Rules 303(c)(1)(i) and (2) (87 Ill.2d Rules 303(c)(1)(i), (2)). This court, the Tribune contends, lacks jurisdiction to review the order transferring venue.

The appeal from a final judgment draws into question all prior non-final orders which produced the judgment. (Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 433, 394 N.E.2d 380.) The Hospital here appeals from the final judgment entered on March 18, 1982. Because the court's prior ruling on venue was interlocutory (Executive Commercial Services, Ltd. v. Daskalakis (1979), 74 Ill. App.3d 760, 393 N.E.2d 1365; cf. Ill. Ann. Stat., ch. 110A, par. 306 (Smith-Hurd 1981)) and contributed to the March 18 judgment, we retain jurisdiction to review its validity. See Consolidation Coal Co. v. Bucyrus-Erie Co. (1980), 93 Ill. App.3d 35, 37, 416 N.E.2d 1090, vacated on other grounds (1982), 89 Ill.2d 103.

Turning to the merits of the venue issue, the Hospital contends that the applicable venue statute (Ill. Rev. Stat. 1981, ch. 110, par. 7(4), now par. 2-103(d)) unconstitutionally distinguishes between resident and nonresident defendants. That section provides:

"Every action against any owner, publisher, editor, author or printer of a newspaper * * * for libel contained in that newspaper * * * may be commenced only in the county in which the defendant resides or has his, her or its principal office or in which the article was composed or printed, except when the defendant resides or the article was printed without this State, in either of which cases the action may be commenced in any county in which the libel was circulated or published."

• 2, 3 A statute is presumed to be valid and the burden is on the party challenging it to show its unconstitutionality. (Polyvend, Inc. v. Puckorius (1979), 77 Ill.2d 287, 303, 395 N.E.2d 1376.) While the passage of time is not conclusive as to the constitutionality of a statute, it creates a strong presumption against its invalidity. (Makowicz v. County of Macon (1980), 78 Ill.2d 308, 311, 399 N.E.2d 1302.) Since section 7(4) was enacted 46 years ago, in 1937, it enjoys a strong presumption of validity. (See Ill. Ann. Stat., ch. 110, par. 7, Historical and Practice Notes, at 67 (Smith-Hurd 1968).) The classification employed here is sufficiently reasonable to withstand constitutional attack. A nonresident newspaper may be inconvenienced by being sued in any county in which the libel was circulated, but the difference to it between one such county and another is likely to be less than to a resident newspaper. The Hospital has failed to show that the challenged classification is so arbitrary or unreasonable as to be repugnant to due process of law. Mapes v. Hulcher (1936), 363 Ill. 227, 230-31, 2 N.E.2d 63.

The Hospital's reliance on Power Manufacturing Co. v. Saunders (1927), 274 U.S. 490, 71 L.Ed. 1165, 47 S.Ct. 678 (Holmes and Brandeis, JJ., dissenting) is unjustified. In Saunders the venue statute treated foreign corporations without reasonable basis and arbitrarily. (See American Motorists Insurance Co. v. Starnes (1976), 425 U.S. 637, 645, 48 L.Ed.2d 263, 271, 96 S.Ct. 1800, 1804.) Under that venue statute plaintiffs were permitted to sue foreign corporations in any county of the State, whereas the instant statute allows nonresident newspapers to be sued only in those counties of the State where the libel was published or circulated. Moreover, as Justice Holmes cogently stated for the Supreme Court in Bain Peanut Co. v. Pinson (1931), 282 U.S. 499, 501, 75 L.Ed. 482, 491, 51 S.Ct. 228, 229, "The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Accordingly, the Hospital's equal protection argument cannot be sustained. See Starnes; Pinson.

The Hospital urges that it will not receive impartial treatment from Cook County judges because of their purported dependence on the endorsement of the Tribune Company for retention elections. This argument must also be rejected. The suggestion that a judge would disregard the obligations of his ...


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