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11/07/88 Rolland E. Main, v. Rick Baker Et Al.

November 7, 1988

ROLLAND E. MAIN, PLAINTIFF-APPELLANT

v.

RICK BAKER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

530 N.E.2d 715, 176 Ill. App. 3d 255, 125 Ill. Dec. 557 1988.IL.1620

Appeal from the Circuit Court of Peoria County; the Hon. Richard E. Eagleton, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. BARRY and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

This appeal arises from a libel action brought against Rick Baker, the Peoria Journal Star, and Bob Springer of the Associated Press. The plaintiff, Rolland E. Main, claims that Rick Baker had written a libelous article published in the Peoria Journal Star and that Bob Springer had written a similar article which had been disseminated by the Associated Press to a number of its members. Following a dismissal of plaintiff's complaint in the circuit court of Peoria County, the libel action was dismissed with prejudice.

In the instant case, the plaintiff and his two business associates, John Curry and United States Agriculture Secretary John Block, were unsecured creditors of J. Catton Farms, Inc. (Catton Farms), in the amount of $350,000. Within 90 days of filing for bankruptcy, Catton Farms secured its debt to the plaintiff and his partners by transferring a junior mortgage on certain farmland to them. A petition was filed by the bankruptcy trustee for Catton Farms seeking to declare the transfer null, as an avoidable preference under section 547 of the Bankruptcy Code (11 U.S.C. § 547 (1982)).

On July 17, 1984, the day after the bankruptcy proceeding against Block, Curry and the plaintiff Main was initiated, the Peoria Journal Star printed an article headlined, "Block accused of illegal investment shuffle." The article, which was written by Rick Baker, referred to the transaction between Catton Farms, the plaintiff, and his partners as "illegal." An Associated Press correspondent, Bob Springer, saw the article and determined it was appropriate for wider publication because it involved the business dealings of John Block, a high governmental official. Before transmitting the news report over the AP wire, Springer confirmed the article by obtaining a copy of the complaint and by interviewing Greg Grimsley, the attorney for the bankrupt's trustee.

The essence of the plaintiff's dispute is over the use of the term "illegal" to characterize the transaction between Catton Farms and the plaintiff and his partners. The plaintiff alleges that the use of the word "illegal" imputed to the plaintiff the commission of a crime. The defendants maintain that the news stories are susceptible to "innocent construction" and that the use of the word "illegal" was not defamatory when describing a voidable preference.

For a complete resolution of this case, it is necessary that this court address two issues. First, whether the claims brought against the Peoria Journal Star abated with the death of Rick Baker and, second, whether the news reports in the instant case were defamatory.

On March 4, 1988, Rick Baker died in an automobile accident. The plaintiff does not contest that the claim brought against Rick Baker abated with his death. The plaintiff contends, however, that since the Peoria Journal Star was sued jointly and severally with the reporter, the fact that the reporter died does not release the newspaper. For reasons set out below, we cannot agree.

It appears from a close reading of the plaintiff's second amended complaint that the plaintiff sued the Peoria Journal Star under the theory of respondeat superior. The counts of the complaint which are directed against the newspaper allege that Rick Baker was an employee of the Peoria Journal Star and "was acting within the course and scope of his employment." They further state that "Rick Baker knew these statements to be false, or believing them to be true, lacked reasonable grounds for that belief, or failed to make reasonable investigation into the truth of the statements contained in the article." The complaint alleged no independent wrong on behalf of the newspaper. If the newspaper had been jointly and severally sued as contended by plaintiff, the claim against the newspaper would survive Baker's death. In fact, however, the complaint was not so constructed. As pleaded, the claim is entirely derivative. Thus, with Baker's death and the abatement of the claim against him, there is no basis for an assessment of liability against the employer. Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.

We now turn to the libel cause of action brought against the Associated Press and its reporter, Bob Springer, and the issues there appertaining, namely: Were the published words defamatory?

The plaintiff's second amended complaint charged the Associated Press and Bob Springer with the ...


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