( 24 Ill.2d 437, 442.) Since that time the innocent-construction rule has been applied in dozens of appellate court cases, but in something less than a completely uniform fashion (see, e.g., Rasky v. Columbia Broadcasting System, Inc. (1981), 103 Ill. App.3d 577; Newell v. Field Enterprises, Inc. (1980), 91 Ill. App.3d 735; Garber-Pierre Food Products, Inc. v. Crooks (1979), 78 Ill. App.3d 356; Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452; Bruck v. Cincotta (1977), 56 Ill. App.3d 260; Moricoli v. Schwartz (1977), 46 Ill. App.3d 481; Watson v. Southwest Messenger Press, Inc. (1973), 12 Ill. App.3d 968; Delis v. Sepsis (1972), 9 Ill. App.3d 217; Lorillard v. Field Enterprises, Inc. (1965), 65 Ill. App.2d 65; see also Porcella v. Time, Inc. (7th Cir. 1962), 300 F.2d 162; Cantrell v. American Broadcasting Companies, Inc. (N.D. Ill. 1981), 529 F. Supp. 746) and often over vigorous objections concerning its application or whether it continues to be a fair statement of the law ( e.g., Levinson v. Time, Inc. (1980), 89 Ill. App.3d 338, 343) ("attempts to eliminate the innocent-construction rule have been consistently rejected by the courts of Illinois for many years in the past"); Kakuris v. Klein (1980), 88 Ill. App.3d 597, 601 ("the innocent construction rule enjoys continued vitality in Illinois"); Vee See Construction Co. v. Jensen Halstead, Ltd. (1979), 79 Ill. App.3d 1084 (the court rejected plaintiff's position that th
We note that Bruck cites Whitby in this regard. If there is any actual difference between them, we prefer to accept the definition stated by our most able colleagues in Bruck, some 13 years later than Whitby. We find Bruck quoted and the definition "lack of ability in his business" used to define the fourth category in Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 456, 395 N.E.2d 1185. In our opinion, even assuming a difference in the meaning of the language thus used, if we apply the Bruck and Makis definition, we must necessarily conclude we are not dealing with libel per se so that the second amended complaint states no cause of action.
An allegation that a statement falsely accuses a person of committing a crime is sufficient to support a defamation action against the person making the statement. ( Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 348, 243 N.E.2d 217; Fogus v. Capital Cities Media, Inc. (1982), 111 Ill. App.3d 1060, 1062; Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 456, 395 N.E.2d 1185.) Thus, we must determine whether the statement in issue here accuses plaintiff of the commission of a crime.
An allegation that a statement falsely accuses a person of committing a crime is sufficient to support a defamation action against the person making the statement. ( Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill.2d 345, 348; Cartwright v. Garrison (1983), 113 Ill. App.3d 536, 540, 447 N.E.2d 446, 448; Fogus v. Capital Cities Media, Inc. (1982), 111 Ill. App.3d 1060, 1062, 444 N.E.2d 1100, 1101; Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 456, 395 N.E.2d 1185, 1189.) Thus, we must determine whether the statements in issue here accuse plaintiff of the commission of crimes.
Plaintiff alleges that these accusations are false and that they cannot reasonably be innocently interpreted. A false statement which imputes that a person lacks integrity in the discharge of the duties of his employment is actionable as defamation. (See Colson v. Stieg (1982), 89 Ill.2d 205, 433 N.E.2d 246; Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 395 N.E.2d 1185; Whitby v. Associates Discount Corp. (1965), 59 Ill. App.2d 337, 207 N.E.2d 482; 33A Ill. L. Prac. Slander Libel sec. 27 (1970).) Moreover, because the words in the case at bar in their entire context can reasonably be interpreted as imputing to plaintiff a lack of integrity, we hold that they are actionable per se. ( Chapski v. Copley Press (1982), 92 Ill.2d 344, 352, 442 N.E.2d 195.) Having so ruled, we find defendants' rebuttal argument to be without merit.
To constitute libel per se an article need not state the commission of a crime in terms of art or with the particularity of an indictment. ( Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 395 N.E.2d 1185.) In the case at bar, the news story stated that the plaintiff physically abused youths arrested by him during a drug raid. At the least, these statements suggest that the plaintiff committed battery, a crime under the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12-3).
"An action based upon 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." ( Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 456, 395 N.E.2d 1185.) There are four categories of words which constitute libel per se.
Bittner simply asserted that the courts have failed to force plaintiff to comply with the building code. Her statement was a criticism of the judicial system rather than an impugnment of plaintiff. It therefore must be considered nonactionable as a matter of law. • 6, 7 A reason why plaintiff's claim against all defendants must fail is that publication of a falsehood is not libel per se unless, on its face, it charges: (1) 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 plaintiff's business, trade or profession. ( Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 456, 395 N.E.2d 1185; Bruck v. Cincotta (1977), 56 Ill. App.3d 260, 264, 371 N.E.2d 874.) 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. 77 Ill. App.3d 452, 456. • 8 Plaintiff claims that the allegedly defamatory statements made by all defendants (except Gloria Bittner and ONE) are libelous per se because they charge him with the commission of a crime.
Whether the article was in fact understood by readers to refer to plaintiff then became a question for the jury. Illinois appellate courts have religiously applied the rule enunciated in John. (Cases cited in Valentine v. North American Co. (1974), 60 Ill.2d 168, 171, 328 N.E.2d 265, 267; see also Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 395 N.E.2d 1185; Dauw v. Field Enterprises, Inc. (1979), 78 Ill. App.3d 67, 397 N.E.2d 41; Garber-Pierre Food Products, Inc. v. Crooks (1979), 78 Ill. App.3d 356, 397 N.E.2d 211.) One recent appellate court opinion offered the following summary of the policies which support the innocent-construction rule:
It seems safe to say that my colleagues have not based their decision on specific Illinois precedent. Indeed, given that we are sitting in diversity, one can't help but be struck by the majority's indifference to the fact that Illinois courts have stated that "[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." Makis v. Area Publ'ns Corp., 77 Ill.App.3d 452, 32 Ill.Dec. 804, 395 N.E.2d 1185, 1189 (1st Dist. 1979). It appears to be widely accepted, both in Illinois and elsewhere, that the mere statement that someone has failed to perform under an agreement does not, without more, implicate one's ability, business integrity or solvency. See, e.g., Springer v. Harwig, 94 Ill.App.3d 281, 49 Ill.Dec. 850, 418 N.E.2d 870, 872 (1st Dist. 1981) (lawsuit charging a person with failure to perform under an agreement "does not, in itself, charge him with lack of ability or integrity in his business."