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Brown v. Farkas





Appeal from the Circuit Court of Cook County; the Hon. Brian B. Duff, and Reginald Holzer, Judges, presiding.


The issues in the appeal arise out of an action by Sanford and Gloria Brown against Allen and Eleanor Farkas for breach of an installment agreement between the parties, in addition to a counterclaim by Allen Farkas against Sanford Brown for defamation. Both actions proceeded as bench trials. The trial court awarded over $240,000 in damages to the Browns in the action on the installment agreement. This agreement was set off against the judgment entered in favor of Farkas against Brown for defamation. The Farkases appeal from the damage award on the basis that the award was inappropriate under the contract. The Browns, in turn, appeal from the defamation judgment, the trial court's decision allowing setoff and the finding that Eleanor Farkas, as guarantor under the installment agreement, was discharged from liability.

As to the defamation action, the trial court entered a judgment against Sanford in the amount of $50,000 in compensatory damages and $1 million in punitive damages in favor of Allen Farkas as a result of a defamatory statement made by Brown. Brown appeals from this order and contends that the statute involved provides immunity to him from a damage award. Alternatively, Brown charges that the damage awards were not supported by the evidence and were excessive. Brown also appeals from the trial court order which set off the judgment received by Sanford and Gloria Brown on the installment agreement against that received by Allen Farkas in the defamation action against Sanford Brown alone. The facts giving rise to both the contract and defamation action are interrelated and are as follows.

Sanford Brown and Allen Farkas met in 1960 or 1961 and Farkas began to work for Brown in 1963, a relationship that continued for the next 20 years. The parties disagree as to whether their relationship remained solely on a business level. In 1979, Brown suffered a stroke and Farkas ran the business during that period. After that time, in 1979, Farkas purchased 50% of the capital stock of Brown's company, Brown's Industrial Uniforms, Inc. Later, in 1982, the Browns decided to sell their remaining interest in the business to Farkas. The sale of the business involved several transactions. Brown's Industrial Uniforms agreed to redeem the stock held by the Browns. Allen Farkas agreed to purchase from the Browns the premises where the business was located under an installment agreement for warranty deed. The installment agreement provided that Eleanor Farkas was to guarantee the obligations of Allen Farkas and Brown Industrial Uniforms under the contract.

During this time, in 1982, as testified to by Sanford Brown, a conversation took place between Brown and Farkas in which Farkas began to describe the breast and vaginal area of his oldest daughter. Brown stated that Farkas then proceeded to an anteroom adjoining Brown's office, where he masturbated into an empty shirtbox and stated in a shrill voice, "Wait till we get home; we're going to play carnival." Brown testified that Farkas stated that the "carnival" game involved "that's where she will sit on my face and I will guess her weight." Brown stated that several months later he considered reporting this incident to the Department of Children and Family Services (DCFS) for investigation. Brown stated that he was aware that one of Farkas' daughters had received psychological treatment and that one of his daughters suffered from a history of bone injuries. Brown testified that in November of 1982 he dialed the DCFS toll-free number; however, he did not make a report at that time. He further stated that at a social affair he had overheard that one of Farkas' daughters had serious psychological problems; however, he could not recall where the affair was at or who the person was who made the comment.

Farkas testified that at some time in February of 1983 Brown called Brown's Industrial Uniforms and left a message on the answering device as follows: "Is it true that Allen masturbates?" Farkas testified that in May of 1983 he sent his monthly payment on the installment agreement for warranty deed to the Browns. The Browns, however, claimed that they did not receive the payment and declared a forfeiture. On May 15, 1983, the Browns filed suit against Farkas to enforce the terms of the installment agreement. After the suit was filed, Eleanor Farkas attempted to present Brown with a cashier's check for the installment due; however, Brown did not accept the payment. The check was then sent to the Browns by certified mail.

Brown testified that on May 21, 1983, he phoned the DCFS and told an intake worker that "there was an employee that I had worked with that was bragging of sexual contact with his daughter." Farkas testified that on May 23, 1983, another message from Brown was left on their phone-answering device. This message stated, "Does Allen still masturbate?" Later that afternoon Farkas and his wife learned that a caseworker from the DCFS, Audrey Macklin, had come to the Farkas home to investigate the call made by Brown. Macklin testified that she conducted a thorough investigation of Allen Farkas in which she interviewed Eleanor, each of the employees and representatives of Brown's Industrial Uniforms, Inc., family members, school counselors and friends. It was Macklin's conclusion that the charge by Brown was unfounded and that there was no truth in the report.

During this time the suit by the Browns against the Farkases to enforce the installment agreement continued. In addition, Farkas filed a counterclaim alleging, among other things, that Brown had committed slander. The Browns then filed a suit against Eleanor Farkas on her contract of guaranty.

• 1 The first issue to be addressed with regard to Brown's appeal from the slander judgment is the award of compensatory damages. Brown propounds three arguments as to this issue. Additionally, Brown challenges the award of punitive damages. Regarding the award of compensatory damages, Brown first argues that the award cannot stand because Farkas failed to present sufficient evidence to support the award. In addition, Brown charges that the Abused and Neglected Child Reporting Act (Act) (Ill. Rev. Stat. 1985, ch. 23, par. 2051 et seq.) provides immunity to him from any damages arising out of the submission of a report to the authorities. Brown further alleges that assuming an award of compensatory damages was proper, the amount of the award in this case was excessive.

In an action for defamation, the law recognizes two classes of damages, general and special. General damages are those which the law presumes must actually, proximately and necessarily result from the publication of the defamatory matter. These damages, which include mental suffering and injury to reputation, arise by inference of law and are not required to be proved by evidence. (Lorillard v. Field Enterprises, Inc. (1965), 65 Ill. App.2d 65, 79, 213 N.E.2d 1.) Thus with regard to this element of compensatory damages, Farkas was not required to bring forth evidence of actual injury.

• 2 In addition to general damages, there are four classes of words in Illinois which, if falsely communicated, give rise to a cause of action for defamation in which a showing of special damages is not required. These categories include words: (1) imputing commission of a criminal offense; (2) imputing infection with communicable diseases of any kind; (3) imputing inability to perform or want of integrity in discharge of duties of office or employment; and (4) prejudicing a particular party in his profession or trade. (Resudek v. Sberna (1985), 132 Ill. App.3d 783, 787-88, 477 N.E.2d 789.) If a statement is found to be slander per se, then special or pecuniary damages need not be proved. Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App.3d 753, 760, 469 N.E.2d 679.

• 3 In determining whether the particular statement is slanderous, the rule of innocent construction must be applied. This rule requires that the statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning. If, as construed, the statement may be innocently interpreted or reasonably interpreted as referring to someone other than the plaintiff, then that statement is not actionable per se. (Chapski v. Copley Press (1982), 92 Ill.2d 344, 352, 442 N.E.2d 195.) In this case Brown called the DCFS and "told them there is an employee that I had worked with that was bragging of sexual contact with his daughter." Brown argues that this statement when innocently construed cannot be deemed to impute the commission of a crime and therefore is not slander per se, thus requiring Farkas to prove special damages. We do not agree.

• 4, 5 It is generally recognized that words charging commission of a crime need not meet the same technical requirements as are necessary for an indictment and words fairly imputing a crime are sufficient. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 348, 243 N.E.2d 217; Proesel v. Myers Publishing Co. (1960), 24 Ill. App.2d 501, 510, 165 N.E.2d 352.) In this case the statement by Brown was made to an authority which is specifically mandated by law to protect children against crimes of sexual abuse. The statement that Farkas had sexual contact with his daughter made to such an authority can leave little doubt that such a statement imputed to Farkas the commission of such a crime against his daughter. Consequently, having found that the statement made by Brown cannot be innocently construed and that the statement was slander per se, Farkas was entitled to an award of special damages without the necessity of proof. Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 348, 243 N.E.2d 217.

• 6 An additional argument raised by Brown with regard to the damage award is that the Act grants immunity from liability to persons who make a report. Specifically, section 9 of the Act (Ill. Rev. Stat. 1985, ch. 23, par. 2059) presumes the good faith of one who reports cases of suspected child abuse or neglect and provides immunity to those who make such reports in good faith. Brown argues that his statement was made in good faith. The trial court, however, determined that Brown did not know the statement to be true and had no reasonable basis to know that it was true, that Brown's behavior in general was corroborative of an attitude of malice and that Brown's subsequent explanations as to his making the statement were hollow with discordance. The trial court, in determining the weight to be afforded the testimony, is in a better position to resolve the credibility of witnesses and the weight to be accorded their testimony, and this court will not substitute its judgment thereon unless an opposite conclusion is clearly evident. (10-Dix Building Corp. v. McDannel (1985), 134 Ill. App.3d 664, 674, 480 N.E.2d 1212.) Brown has not ...

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