The opinion
JUSTICE RIZZI, dissenting:
In my opinion, the majority discusses and dwells on matters which are not relevant to a disposition of this appeal. As a result, I believe that the majority misses the real issues present here. I also believe that the majority has reached a decision which will seriously impair the ability of law firms and corporations to conduct meaningful directors’ meetings. I believe that the majority’s decision will have such a chilling effect on directors that their meetings will be deprived of the vitally and frankness of speech that is necessary at a directors’ meeting. I would affirm the dismissal of the amended complaint and the refusal to allow the filing of the second-amended complaint.
The first matter that a reviewing court should consider in any case in which a complaint alleging slander has been dismissed is the specificity of the allegations. Here, I believe that the amended complaint and the second-amended complaint are not legally sufficient to maintain a slander action against Witous because they do not set forth the actual words of Witous that are alleged to constitute a slander.
A slander complaint, like any other civil complaint in Illinois, is required to plead the ultimate facts which give rise to the cause of action. It is obvious that the elements of a cause of action for slander are not factually set forth unless the actual defamatory words of the defendant are included in the complaint. Thus, in an action for slander the actual words of the defendant must be set forth in the complaint in haec verba. There is no other way that the complaint can be tested to determine whether it is legally sufficient.
One of the ways to test the legal sufficiency of a slander complaint is to apply the innocent-construction rule. Plainly, you cannot apply the innocent-construction rule unless you know the actual words to which the test is being applied. Conclusionary statements and characterizations by the plaintiff will simply not suffice. Also, there are many words, terms and phrases that are pejorative, but as a matter of law they do not constitute slander. (See Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574 , 506 N.E.2d 1370 ; Dauw v. Kennedy & Kennedy, Inc. (1984), 130 Ill. App. 3d 163 , 474 N.E.2d 380 .) There is simply no way that this truism can be applied to test a complaint for slander unless the complaint plainly sets forth the actual words of the defendant that are alleged to constitute a slander.
Here, the basis of plaintiff’s action for slander is stated in paragraph 22 of his amended complaint as follows:
“22. On or about September 3, 1982, JOHN J. WITOUS stated to JAMES T. FERRINI and other members of the Board of Directors of Clausen, Miller, Gorman, Caffrey & Witous, P.C., that plaintiff ‘sat’ on the statute of limitations defense with knowledge of the M. T. Reed cases for three years and as a result, cost Clausen, Miller, which had taken the Kerr-McGee cases on a contingent fee basis, a considerable amount of money.”
After his amended complaint was dismissed for failure to state a cause of action for slander, plaintiff proposed to file a second-amended complaint in which he changed the relevant paragraph from 22 to 29, and changed the language of the paragraph to read as follows:
“29. At that time, JOHN J. WITOUS, in an effort to deflect said criticism from himself onto Plaintiff and make Plaintiff the scapegoat for the problem, stated that the waste of time and money in preparing the Kerr-McGee cases was not his (WIT-OUS’S) fault but that of the Plaintiff who ‘sat’ on the statute of limitations defense with knowledge of M. T. Reed and its applicability for three years without attempting to settle in order to cut the firm’s probable losses.”
To me, it is obvious from reading the relevant paragraphs in plaintiff’s amended complaint and second-amended complaint that plaintiff is groping to allege a slander action without knowing precisely what Witous said at the board of directors’ meeting.
Moreover, particular paragraphs in a complaint, like the complaint itself, must be read in their entirety when tested to determine the sufficiency of the matter alleged. There are no magic buzz words in a complaint when it is being tested to determine whether it is legally sufficient. (See Wilson v. Hunk (1977), 51 Ill. App. 3d 1030, 1035-36 , 367 N.E.2d 478, 482-83 .) In Wilson, the court stated:
“Counts IV and V undertake to allege slander in the language that defendant, Hunk:
*** ‘came to the aforesaid place of residence of the Plaintiff and there accused him of the crime of pimping in the presence of another police officer, and, later that same day, did again publicly say and accuse the Plaintiff of the crime of pimping at the police station of the City of Decatur in the City of Decatur, Macon County, Illinois in the presence of other persons.’
* * *
We find that each count purporting to allege slander is fatally defective in that the assertedly defamatory statement is alleged in the form of a conclusion that the defendant, Hunk, ‘accused him of the crime of pimping’ in the presence of others. It has long been the rule that in an action for libel or slander the words alleged to be defamatory must be set forth with particularity.” 51 Ill. App. 3d at 1035 , 367 N.E.2d at 482 .
In the present case, although the word “stated” appears in the relevant paragraphs of the amended complaint and second-amended complaint, I believe that when the paragraphs are read in their entirety, rather than isolating on each word, the paragraphs merely allege conclusions and characterizations of the plaintiff rather than the actual words of Witous. While precision pleading may not be essential in other types of actions, in a slander action a plaintiff must set forth in his complaint the actual words of the defendant that are alleged to constitute a slander.
Since neither the amended complaint nor the second-amended complaint in the present case sets forth the actual words of Witous that are alleged to constitute a slander, I believe that the amended complaint and the second-amended complaint are not legally sufficient to maintain a slander action against Witous. Also, since plaintiff is unable to set forth in a complaint the actual words of Witous, plaintiff should not be permitted to use an alleged slander action against Witous to permeate the qualified privilege that exists with respect to what occurred at the directors’ meeting.
Count II of the amended complaint and counts III and IV of the second-amended complaint are efforts to allege actions against Witous for intentional interference with plaintiff’s “indefinite duration” employment contract with Clausen, Miller, Gorman, Caffrey & Witous, P.C. Count IV makes the same charge against Ferrini on the basis that “Ferrini breached his duty to Plaintiff and adopted John J. Witous’ statements as his own.”
The counts dealing with an intentional interference action incorporate virtually all of the paragraphs of the slander counts. In addition, plaintiff further alleges that Witous’ statement at the board of directors’ meeting resulted in the firm’s decision to terminate plaintiff’s employment. There is no claim by plaintiff that the board of directors did not act within the scope of their authority when plaintiff’s employment was terminated.
The peculiar relation boards of directors bear to corporations is a result of a corporation’s inability to act except through its board of directors and officers. Thus, a corporation acts through its board of directors and officers and is bound by their actions performed within the scope of their authority. In effect, the corporation is the owner of the property but the directors in the performance of their duty possess it, and act in every way as if they own it. It is important to understand and appreciate these principles here.
A defendant’s breach of his own employment contract with a plaintiff is of course not a basis for the tort of intentional interference with contractual relations. (Salaymeh v. InterQual, Inc. (1987), 155 Ill. App. 3d 1040, 1044-45 , 508 N.E.2d 1155, 1159 ; W. Keeton, Prosser and Keeton on Torts 990 (5th ed. 1984).) Applying this principle to the relationship between a corporation and its board of directors, I believe that neither a corporation nor the members of its board of directors can be guilty of the tort of intentional interference with an employment contract that the corporation has with one of its employees. In my opinion, not only is this conclusion sound on a legal basis but it is also sound on a socio-legal basis. Members of boards of directors must be able to function at board members free from the sword of Damocles in the form of a suit against them personally for intentional interference with an employee’s employment contract with the corporation.
I therefore believe that count II of the amended complaint and counts III and IV of the second-amended complaint fail to allege a cause of action against either Witous or Ferrini for intentional interference with plaintiff’s employment contract with Clausen, Miller, Gorman, Caffrey & Witous, P.C.
I do not address the majority opinion with any particularity because the majority has applied the innocent-construction rule not to the actual words of Witous, but rather to the conclusions and characterizations of plaintiff. It is meaningless to discuss the application of the innocent-construction rule to the conclusions and characterizations of plaintiff. Also, the majority decides issues and discusses cases that are simply not relevant to a disposition of this appeal. While it is true that the majority refers to matters that are stated in the briefs, a reviewing court should affirm a judgment or order on any ground appearing in the record. I believe that the record in this case demonstrates that the order from which the appeal is being taken should be affirmed for the reasons that I have stated.
Accordingly, I would affirm the dismissal of the amended complaint and the refusal to allow the filing of the second-amended complaint.