{ "id": 5190474, "name": "Eve Spiro John, Appellant, v. Tribune Company, Appellee", "name_abbreviation": "John v. Tribune Co.", "decision_date": "1958-12-08", "docket_number": "Gen. No. 47,498", "first_page": "547", "last_page": "554", "citations": [ { "type": "official", "cite": "19 Ill. App. 2d 547" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "3 F.2d 207", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1686581 ], "opinion_index": 0, "case_paths": [ "/f2d/3/0207-01" ] }, { "cite": "240 N. W. 579", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1932, "opinion_index": 0 }, { "cite": "345 Ill. App. 135", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2432455 ], "year": 1932, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ill-app/345/0135-01" ] }, { "cite": "6 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1932, "opinion_index": 0 }, { "cite": "217 N. C. 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597441 ], "weight": 2, "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/217/0013-01" ] }, { "cite": "31 N. Y. Supp. 567", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3539434 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/nys/31/0567-01" ] }, { "cite": "83 Hun 220", "category": "reporters:state", "reporter": "Hun", "year": 1894, "opinion_index": 0 }, { "cite": "288 Ill. 405", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4955508 ], "year": 1894, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/ill/288/0405-01" ] }, { "cite": "237 Ill. 592", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3385574 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/ill/237/0592-01" ] } ], "analysis": { "cardinality": 576, "char_count": 9742, "ocr_confidence": 0.514, "pagerank": { "raw": 1.5823541520022425e-07, "percentile": 0.6806103367416402 }, "sha256": "8eb9c58e757f80ac8a3b3aaf7f41321610d27fe23a7f72703ffc70a516be1f24", "simhash": "1:e0767d9a0dffb465", "word_count": 1693 }, "last_updated": "2023-07-14T21:56:16.878292+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McCORMICK, P. J. and ROBSON, J., concur." ], "parties": [ "Eve Spiro John, Appellant, v. Tribune Company, Appellee." ], "opinions": [ { "text": "JUSTICE SCHWARTZ\ndelivered the opinion of the court.\nIn this action for libel the defendant filed a motion to strike the third amended complaint and supported its motion with an affidavit setting up what purports to be affirmative matter pursuant to Section 48(1) (i) of the Practice Act [Ill. Rev. Stat. 1957, ch. 110, \u00a7 48(1) (i)]. The court sustained the motion and dismissed the suit. From that order plaintiff has appealed. The principal question in the case concerns liability for libel where there is a confusion of identities. Also involved is the propriety of a motion under Section 48(1) (i) to raise this question where the complaint charges that the libel was of and concerning the plaintiff.\nThe case grows out of two news items in defendant\u2019s newspaper describing a police raid of an apartment at 4417 Ellis avenue, Chicago, in which a number of women were arrested. On March 30, 1952, defendant published an article describing the raid, saying: \u201cDolores Reising, 57, alias Eve Spiro and Eve John, who, police said, was known years ago as Accardo\u2019s woman friend, was held as the suspected keeper of the apartment.\u201d On March 31, 1952, defendant published another article, saying that the five women arrested in the raid would appear in the Women\u2019s court Wednesday and that \u201cDorothy Clark, 57, who gave 4417 Ellis Av. as her address, was charged with being-keeper of a disorderly house. . . . Police said she is also known as Dolores Reising-, Eve Spiro, and Eve John, and was known years ago as a girl friend of Tony Accardo, Capone gangster.\u201d Plaintiff\u2019s name at the time was Eve John and her maiden name was Eve Spiro. She lived in an apartment below the one raided and it is alleged in the complaint that she was the only person with that name at that address. The complaint alleges that the articles were understood by readers of defendant\u2019s newspaper to refer to plaintiff; that the statements were false and had seriously damaged plaintiff\u2019s reputation and caused her severe mental and physical distress and loss of practice as a psychologist.\nPrior to the entry of the order here in question, the court had stricken two previous complaints and had given plaintiff leave to amend. A motion to strike and dismiss the second amended complaint was denied on July 2,1953, and defendant was ordered to answer. An answer was filed July 21, 1953. Following- this, Dorothy Clark\u2019s deposition was taken and filed February 15,1955.\nOn June 26, 1957, defendant filed a motion for summary judgment and stated as reason therefor that the language complained of was not of and concerning plaintiff and not libelous as a matter of law, but was true as a matter of law, and that Dorothy Clark, alias Dolores Reising, did in fact use the names Eve Spiro and Eve John. On the same date plaintiff was given leave to file affidavits and counteraffidavits. On August 1,1957, the affidavit of Don H. Reuben, one of the attorneys for defendant, was filed in support of defendant\u2019s motion for summary judgment, and on August 30, 1957, the affidavit of Eve John was filed in opposition to defendant\u2019s motion for summary judgment. On September 17,1957, the motion for summary judgment was denied, but apparently on the court\u2019s own motion the second amended complaint was stricken and plaintiff was granted leave to file a third amended complaint \u201cpleading special damages.\u201d A motion to reconsider and vacate that portion of the order of September 17,1957, striking the second amended complaint was denied, but the court amended its order by striking therefrom the language which related to \u201cpleading special damages.\u201d Thereupon plaintiff filed the third amended complaint.\nIt was after the filing of the third amended complaint that defendant filed its motion to strike and dismiss pursuant to Section 48(1) (i), which the court sustained. That motion is based on the ground that upon the face of the complaint and as appears from the affidavit of Don H. Eeuben and the deposition of Dorothy Clark, the language is not of and concerning plaintiff and is not libelous. That was in substance a renewal of the motion for a summary judgment which had been previously heard and denied.\nThe first, question to be determined is the nature of the issue presented by the motion and objections thereto. That the language of the articles is libelous per se is not open to question. Defendant in its brief introduces its description of the raid by the statement: \u201c. . . the police believing the house was used for prostitution raided it. . . .\u201d The articles relate to a person whose name was Dolores Eeising or Dorothy Clark, age 57, alias Eve Spiro and Eve John, living at 4417 Ellis Avenue. The word \u201calias\u201d is derived from alius, meaning \u201cother,\u201d so that the article, understood both in its ordinary and its derivative sense, meant that a person who had the name of Dorothy Clark or Dolores Eeising, also used other names, to-wit: Eve Spiro and Eve John, and was the keeper of a house of prostitution and the girl friend of a gangster.\nDefendant argues that the first name given in such articles is the real name in common understanding, and that the names following the first name are considered to be aliases or fictitious. Names are tags of identity. In a community where there are many John Smiths, it is not uncommon for one who bears that name to adopt a Q, X, Y or Z as a middle initial or to adopt a number in addition to his name. It is sometimes assumed that the first name given in a description of the sort here in question is the birth name and that the names which follow are those later adopted. It is an assumption which quickly disappears, especially when reference is made to a notorious person. Certainly, there is no presumption in law, prima facie or conclusive, to that effect.\nIn the instant case the first article referred to Dolores Reising and (adding to the confusion) the second referred to her as Dorothy Clark, but in each instance the names of Eve Spiro and Eve John were attached as aliases. A reader of one of the articles might have concluded that the name was Dolores Reising or Dorothy Clark, according to which article was read first, but those who read both articles would certainly have understood that this was just a way of writing the story and that neither police nor reporters knew the real name.\nWhat is presented for trial in this case is a question of fact and not of law. The question is whether readers of the articles did and could reasonably understand them to refer to plaintiff. Ball v. Evening American Pub. Co., 237 Ill. 592 (1909); Ogren v. Rockford Star Printing Co., 288 Ill. 405, 413; Palmer v. Bennett, 83 Hun 220, 31 N. Y. Supp. 567 (1894); Roth v. Greensboro News Co., 217 N. C. 13, 6 S.E.2d 882; Jones v. E. Hulton Co., 2 K. B. D. 444, aff\u2019d 1910 Appeal Cases 20; Algozino v. Welch Fruit Products Co., 345 Ill. App. 135, 143; Walker v. Bee-News Pub. Co., 240 N. W. 579 (Nebr. 1932); Washington Post Co. v. Kennedy, 3 F.2d 207.\nDefendant makes the point that the discrepancy between plaintiff\u2019s age (26 or 27 at the time of publication of the articles) and the age given in the news article, 57, was such that \u201cas a matter of law no reader would or did ever believe\u201d that plaintiff was the subject of the publications. That is merely an item of evidence, to be considered by a trier of fact. Roth v. Greensboro News Co., 217 N. C. 13, 6 S.E.2d 882.\nHaving concluded that what was presented to the court involved an issue of fact, could such an issue be disposed of by motion to dismiss under Section 48? The main purpose of that section (aside from (l)(i)) is to provide for a disposition of a case upon such defenses as jurisdiction of the court, legal capacity to sue and be sued, prior judgment, and other defenses which may be decided by resort to a record or matter so conclusive that a plaintiff could not deny it. However, Section 48(1) (i) which has been added seems to have embarked on a field the limits of which are not as yet defined. It provides for the use of the motion when \u201cthe claim or demand asserted by a defendant is barred by other affirmative matter voiding the legal effect of or defeating a claim or demand.\u201d This might be taken to mean any plea of new matter, factual or otherwise. Obviously, it cannot have such a broad interpretation, for so applied it could result in a trial without a jury (although one may have been demanded), without oral evidence and without cross-examination. We will not undertake to define the limits of Section 48(1) (i) at this time, but it is clear that where the affirmative matter, so-called, is nothing more than evidence upon which a defendant expects to contest a vital fact stated in a complaint, such as the averment in the instant case that the libelous language was said of and concerning plaintiff, the motion to dismiss under Section 48(1) (i) is not proper. An issue is presented, to be tried in ordinary course.\nThe order is reversed and the cause is remanded with directions to deny the motion, to direct defendant to answer, and to set the cause down for trial, and for such other and further proceedings as are consistent with the views herein expressed.\nOrder reversed and cause remanded with directions.\nMcCORMICK, P. J. and ROBSON, J., concur.", "type": "majority", "author": "JUSTICE SCHWARTZ" } ], "attorneys": [ "Antonow & Weissbourd, and A. Bradley Eben, of Chicago (Ernest G-reenberger, Richard A. Siegal, of counsel) for plaintiff-appellant.", "Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Howard Ellis, Don H. Reuben, William R. Jentes, of counsel) for defendant-appellee." ], "corrections": "", "head_matter": "Eve Spiro John, Appellant, v. Tribune Company, Appellee.\nGen. No. 47,498.\nFirst District, First Division.\nDecember 8, 1958.\nRehearing denied December 24, 1958.\nReleased for publication January 23, 1959.\nAntonow & Weissbourd, and A. Bradley Eben, of Chicago (Ernest G-reenberger, Richard A. Siegal, of counsel) for plaintiff-appellant.\nKirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Howard Ellis, Don H. Reuben, William R. Jentes, of counsel) for defendant-appellee." }, "file_name": "0547-01", "first_page_order": 559, "last_page_order": 566 }