Makis v. Area Publications Corp. , 77 Ill. App. 3d 452 ( 1979 )

Mr. JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Paul Makis, instituted a libel action in the circuit court of Cook County against defendants, Area Publications Corp., d/b/a Suburban Tribune, Sue Treiman and William Guist. The trial court dismissed plaintiff’s complaint with prejudice for failure to state a cause of action upon which relief could be granted.

The issue presented by plaintiff’s appeal from the dismissal of his complaint is whether the allegedly libelous article published in the Suburban Tribune is susceptible of an innocent construction. We find that it is and affirm the trial court.

On October 25, 1976, the Suburban Tribune published an article entitled “Flight School Vanishes Into Thin Air.” The article, in general, concerned the involvement of plaintiff and others in the operation of a sky sailing school. The complaint alleged that defendants maliciously and wrongfully published the article, that it was totally false with regard to plaintiff, and that as a result plaintiff lost his job as the manager of a sporting goods store and suffered injury to his reputation and credit.

The complaint did not specify the particular language in the article claimed to be libelous. In its entirety, the article states:

“Flight School Vanishes Into Thin Air

It could have been an accident, an argument, or just plain crime that prompted the owners of a sky sailing school in Mt. Prospect to take flight this summer.

Whatever the reasons, though, the three who owned and managed the Four Winds Sports School, 109 W. Prospect Av., left a number of people in the lurch when they shut down the storefront school and disappeared.

They borrowed *500 from a butcher down the street, ran up bills at the printing shop next door, and accepted hundreds of dollars from would-be sky sailors who paid their money thinking they’d get sky sailing lessons and never did. They also sold sky sailing equipment. The Mt. Prospect clerk’s office is investigating the store, which officials say never applied for a village business license despite repeated warning letters. And a local resident, who paid *50 for hang gliding lessons she never received, has turned a complaint over to the Illinois attorney general’s consumer protection bureau.

At least six persons, who paid *50 for the lessons, have lodged complaints with the village chamber of commerce, which in turn is working with the city clerk’s office in tracking down the owners.

But nobody knows where the owners are. Three theories have been advanced to explain their sudden disappearance shortly after July 4.

Of the three co-owners of the shop, only one, Steven Naffziger, of 6-a Dundee Quarter in unincorporated Cook County near Palatine, still maintains a working phone number. Paul Makis of Hoffman Estates has had his phone disconnected. David Snook, of 120 Boardwalk, Elk Grove Village, has a ‘malfunctioning phone,’ according to Illinois Bell.

At the Sound Post Ltd., 101 W. Prospect, the manager said she thought the three shut down their business after one of them suffered a serious sky sailing accident. ‘All I know is that one of the men was badly injured in an accident,’ the store’s manager said Friday. Snook reportedly suffered a broken neck in a 1974 skysailing crash.

William ‘Bud’ Barthel, owner of the People’s Choice Meat Market, 105 W. Prospect, said the business was shut down because the owners had quarreled among themselves.

‘The partnership was dissolved. They had a fight and quit,’ Barthel said. Barthel made a *500 personal loan to the business, but he says he’s not worried about getting the money back.

‘I have faith in human nature,’ Barthel said. He added that he has directed complaints about the operation since then to the Mt. Prospect Chamber of Commerce.

But Kevin O’Donnell, deputy village clerk and an assistant village manager in Mt. Prospect, has a different theory.

‘They could have planned a short-term tenure in the building, built up a business, and then left with the money,’ he speculated.

O’Donnell said he pieced together the likely operating method the pair may have used from the complaints that came in.

According to O’Donnell, the store advertised its sky sailing lessons in local newspapers.

Interested patrons would be shown a short film on sky sailing and would talk informally with store owners about the sport. Then the three owners would sign up students for the *50 lessons. They promised ground school lessons, to be given at the store, and several tries in the air at Warren Dunes State Park near Sawyer, Mich.

Several persons told O’Donnell they received their ‘ground school training,’ in reality a short session devoted to familiarizing students with sky sailing equipment. But the sky sailing sessions never got off the ground.

Ann Graham of Schiller Park said she and her niece paid *50 each for the lessons but kept getting turned down for their sessions at the Warren Dunes. Finally the pair went back to Four Winds only to be told they they couldn’t get the lessons because they hadn’t scheduled for the class in advance.

‘We went all the way out there, found the guys, and they still wouldn’t give us the lessons,’ Graham said. She turned over a complaint about the unfinished lessons to the attorney general’s office last week. Mary and Lois Wollney, 140 S. Hawthorne Rd., Barrington, tried on two occasions to schedule the flying lessons and were turned down. Their teachers said the weather was ‘wrong’ for sky sailing.

‘The first time, we started driving out there, and, just in case, we stopped and called at an oasis. They told us it was too windy out. It could have been there but it was beautiful here, not windy at all,’ Lois Wollney said.

Neither the city clerk’s office nor the sky sailing pupils, nor the neighboring storeowners are sure what happened to the three since the business closed down, about the second week in July. Only Barthel reported seeing one of the owners, David Snook, since then.

But O’Donnell admits that the village has its hands tied in the matter. They don’t have a business license they can pull on the store, can’t find the proprietors, and haven’t any complaints monetarily big enough to warrant filing criminal charges.

In July, O’Donnell said, a village policeman and later a building inspector found the office completely empty. Neighbors report the business was evicted from the store after the owners failed to pay the rent.

Lois Wollney said the trio’s sky-sailing antics may have reached to the Warren Dunes.

She said forest rangers at the dunes told her the three had rented a motel room and advertised sky sailing lessons at the dunes [giving their phone number in Mt. Prospect for interested persons] with a sign posted outside the room. Then, the rangers said, the three took off without paying for the room, which they had arranged to rent for a number of months, according to Wollney.

The Berrien County [Ind.] sheriff’s police, which covers the Warren Dunes Area, said Friday they hadn’t received any complaints about the Four Winds owners. Rangers in the area also said they hadn’t heard of the scheme.”

Defendants moved to dismiss the complaint pursuant to section 45 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 45), on the grounds that the article was nonactionable as a matter of law under the rule of innocent construction and that the complaint failed to allege damages with sufficient particularity. Defendants’ motion to dismiss was granted and a final order dismissing the action with prejudice was entered.

Opinion

An action based on libel per se requires a serious charge of incapacity or misconduct in words so obviously and naturally hurtful that proof of their injurious character is dispensed with. (Sloan v. Hatton (1978), 66 Ill. App. 3d 41, 383 N.E.2d 259; Bontkowski v. Chicago Sun-Times (1969), 115 Ill. App. 2d 229, 252 N.E.2d 689.) A false statement is libelous per se if it imputes to the plaintiff (1) the commission of a crime; (2) infection with a loathsome disease; (3) unfitness or want of integrity in performing the duties of an office or employment; or (4) lack of ability in his business, trade or profession. Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 371 N.E.2d 874.

In determining whether the challenged language falls within one or more of these recognized categories, “the article is to be read as a whole and the words given their natural and obvious meaning, s ° * words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law.” (John v. Tribune Co. (1962), 24 Ill. 2d 437, 442, 181 N.E.2d 105, 108, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148.) Termed the rule of innocent construction, this analysis requires that the meaning of the statement be gathered, not from isolated passages, but from the context of the language, stripped of innuendo and read in the best possible light. Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 371 N.E.2d 874; see Ware v. Carey (1979), 75 Ill. App. 3d 906, 394 N.E.2d 690.

We decline plaintiff’s challenge to abandon the rule of innocent construction, a rule that has been applied repeatedly by Illinois courts, as indicated in the following summary in Sloan v. Hatton (1978), 66 Ill. App. 3d 41, 43, 383 N.E.2d 259, 261:

“Illinois courts have applied the innocent construction standard consistently and with logical predictability. For instance: A news story reported the keeper of a bawdy house had an alias identical with plaintiff’s name and it was held non-actionable as a matter of law because the story did not under all possible constructions indicate plaintiff was the keeper [citation]; as a matter of law it was held that an insurance agent had not been libeled because he was described as a ‘lousy agent’ [citation]; a deputy circuit clerk was not libeled by being called a ‘political hack’ [citation]; a school principal had no cause of action for slander because he had been called not qualified to be a principal and a disgrace to his profession [citation]; a business executive was not libeled by a story in a nationally circulated magazine that stated he was no manager’ [citation].”

The appellate court is not the appropriate forum to seek a change in this well-established rule of law.

Plaintiff contends that the Suburban Tribune article falsely imputes to him the commission of a crime, particularly fraud. Plaintiff has not specified the language upon which he relies, but from our reading of the article the only passage which arguably suggests criminal conduct is found in the following sentence: “It could have been an accident, an argument, or just plain crime that prompted the owners 0 ® ® to take flight this summer.” Although to constitute libel per se, accusations need not state the commission of a crime in terms of art or with the particularity of an indictment (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 243 N.E.2d 217), the generic reference to crime in this case is susceptible of an innocent construction and nonactionable as a matter of law, because it is offered as only one of three possible explanations for the closing of the sky-sailing school. The word “crime” is conditioned by the words “could have been” in the sentence. Read in the context of the entire article, the suggestion of criminal conduct is merely hypothetical and does not impute any act of specific criminal conduct to plaintiff. See Homestead Realty Co. v. Stack (1978), 57 Ill. App. 3d 575, 373 N.E.2d 429.

Plaintiff also contends that the article charges him with lack of ability or integrity in his business or trade. This contention is based generally on statements in the article suggesting that the sky-sailing school owners took money for lessons which they did not provide, failed to pay bills, closed the school, and disappeared. Again plaintiff does not point to any specific language to support his charge.

Allegations of outstanding debts and the failure of a business venture are neither necessarily injurious to a person’s business reputation nor indicative of a lack of integrity in business dealings. (See Lowther v. North Central College (1978), 60 Ill. App. 3d 902, 377 N.E.2d 357.) The closing of the sky-sailing school is capable of several innocent explanations, including lack of business, insufficient capital or economic factors beyond the owners’ control. (See Wexler v. Chicago Tribune Co. (1979), 69 Ill. App. 3d 610, 387 N.E.2d 892.) The Suburban Tribune article offers two equally plausible and reasonable explanations for the occurrence — an injury to one of the owners or a dispute among the business partners. Applying the rule of innocent construction, the closing of the sky-sailing school, albeit under questionable conditions, is susceptible to an innocent construction in keeping with the tenor and content of the article and, therefore, is nonactionable as a matter of law.

There being no allegations in the complaint to support special damages, the order of the circuit court dismissing plaintiff’s complaint is affirmed. It is, therefore, unnecessary to reach other matters raised by defendants in support of the trial court’s determination.

Affirmed.

JOHNSON, J., concurs.