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08/24/87 H. H. "Sam" Barter, v. Robert C. Wilson Et Al.

August 24, 1987

H. H. "SAM" BARTER, PLAINTIFF-APPELLANT

v.

ROBERT C. WILSON ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

512 N.E.2d 816, 159 Ill. App. 3d 694, 111 Ill. Dec. 427 1987.IL.1232

Appeal from the Circuit Court of Sangamon County; the Hon. Raymond L. Terrell, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On August 11, 1982, plaintiff, H. H. "Sam" Barter, brought suit in the circuit court of Sangamon County seeking damages for defamation against defendants, Robert C. Wilson, the Springfield State Journal-Register (Journal-Register), the Copley Press, Inc. (Copley), and Steve Hahn. On December 31, 1986, the court entered a judgment allowing the motions of the various defendants to dismiss plaintiff's three-count second-amended complaint in bar of action for failure to state a cause of action. Plaintiff has appealed. We affirm.

Plaintiff's complaint is based upon a newspaper article allegedly written by Hahn and published on August 20, 1981, in the Journal-Register, a newspaper published by Copley. A copy of the article was attached to the complaint and incorporated therein by reference. It is entitled "Battle for a piece of the Ohio River." It states that plaintiff and Wilson have applied to the Illinois Department of Transportation for permits to develop land near Shelterville in southern Illinois on the Ohio River. Apparently, the award of a permit to plaintiff for the development of land near the river would make the development which Wilson seeks to make no longer feasible. Plaintiff's contention that he is defamed by the article is based mostly upon statements in the article concerning complaints Wilson allegedly made to Hahn in regard to favoritism that was being exercised on behalf of plaintiff's request for a permit.

Count I of the second-amended complaint is against the Journal-Register, Copley, and Hahn and seeks damages for the publication of the article. Counts II and III are against Wilson. Count II alleges that Wilson made remarks attributed to him in the article knowing that the article would be published and with the intent that would happen. That count also alleges that Wilson knew the statements he made about plaintiff were false, as shown by letters allegedly written by Wilson to Hahn and Don Vonnahme, an assistant director of DOT for Water Resources, copies of which are also attached to the complaint. Count III of the complaint alleges that Wilson defamed plaintiff by the aforesaid letters which plaintiff knew to be false. In all counts plaintiff seeks only general damages. He does allege that he has lost certain business contracts because of the alleged libel, but such a pleading lacks the specificity necessary to set forth special damages.

The grounds upon which the sufficiency of the second-amended complaint was attacked and upon which the defendants now seek to support the judgment of dismissal are: (1) under the innocent-construction rule as set forth in John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105, as modified by Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, the statements alleged to defame plaintiff must be interpreted as not defamatory or as not referring to plaintiff; and (2) plaintiff failed to properly allege malice. We agree that the modified innocent-construction rule operates to destroy any vitality in plaintiff's complaint and to require the dismissal of the complaint. We need not discuss any aspect of the malice issue raised.

In John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105, the court held that newspaper articles which listed a woman with various alias names as having been arrested at a certain address and charged with keeping a house of prostitution were not defamatory as to plaintiff even though she lived at that address and her name was among those names listed as aliases for the woman arrested. The court reasoned that the articles could be construed as referring only to the person bearing the actual name listed before the statement of the aliases. In Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, the court noted that the innocent-construction rule had arisen from dictum in John, but that it had not been applied uniformly and required modification.

The Chapski court deemed the modification of the rule necessary to better protect an individual's interest in vindicating his good name and reputation while allowing the "breathing space" essential to the fruitful exercise of the first amendment guarantees. (New York Times v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710.) The court defined the modified innocent-construction rule in these words:

"written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se." (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195, 199.)

The change was intended to prevent the lower courts from straining to reach an unreasonable, but innocent construction of allegedly defamatory language. Under Chapski, the allegedly defamatory words must be given a reasonable interpretation within the context in which they are used.

The newspaper article describes both plaintiff and Wilson as being "wealthy and politically well-connected." Wilson is stated to have been "driven about town" in a recent trip to Springfield by his State representative. Plaintiff is stated to be a prominent road contractor, "ex-president of the Associated General Contractors of Illinois and acquainted with top DOT officials." The article also says that, according to Wilson, plaintiff is a very close friend of William Cellini, "one of downstate's most influential Republicans" and a former head of DOT. The article quotes Wilson as saying that the decision has already been made to award the permit to plaintiff because of his "personal and political connections." The major thrust of the article concerns statements attributed by Wilson to Vonnahme, DOT's deputy director of Water ...


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