Marr v. Putnam , 196 Or. 1 ( 1952 )

LUSK, J.

This is an appeal by the plaintiffs from a judgment of involuntary nonsuit in an action of libel.

In November, 1946, the plaintiffs, John E. Marr and Robert B. Marr, brothers (who will hereinafter be referred to by their given names), were students at Willamette University in Salem, Marion County, Oregon. They were veterans of World War II, and as such receiving financial aid from the government for educational purposes under the legislation popularly known as the “G. I. Bill of Rights.” To supplement their incomes so that they would be able to continue in school they undertook to engage in their spare time in the business of repairing radios. John had had some experience in that kind of work and owned some equipment. The brothers purchased additional equipment and a small stock of parts, and fitted up a room in the attic of John’s house as a repair shop. In the latter part of November, 1946, they inserted in the two Salem daily newspapers, the Capital Journal and the Statesman, an advertisement reading as follows:

‘ ‘ GUARANTEED RADIO SERVICE, Free pick-up delivery. Ph. 9098.”

The phone number 9098 was that of a service station in Salem leased from the Shell Oil Company by Edward A. Perrin, with whom the plaintiffs had made an arrangement for its use in that manner, Mr. Perrin undertaking for an agreed compensation to accept calls from persons answering the advertisement and desiring the plaintiffs’ pickup and repair service and to keep a record of their names, addresses and phone numbers. Eobert, who had a car, would go to the service station after school hours for the purpose of finding out whether any orders had been received, and would pick up the radios of those phoning in orders and take them to John’s house to be repaired. After John had made the repairs Eobert would deliver the radios to the owners. It was also Eobert’s duty to make the collections and keep the books. The advertisement was first inserted in the papers on the 27th or 28th of November, 1946, and was published continuously thereafter until the end of December.

In the issue of the Capital Journal of December 4 there appeared the following article which is the basis of this action:

“SLICKEES WOEK EADIO EACKET

“Established radio dealers and repair plants in the city are becoming alarmed over what appears to be a ‘radio racket’ which causes owners to lose their sets and much embarrassment upon the part of the dealer.

“ ‘The common practice of these slickers is not to operate from any established shop but just give a phone number to call and offer free pick-up service,’ according to Eay Moore, 3720 Portland Eoad, who has had personal experience along this line.

“ ‘In most instances the name is not listed and since it is impractical to- properly service most radios in the home, the set is taken away and that is the last the owner sees of his radio. In some cases the customers were told that the radios would be taken to some well-known or established shop and considerable ill-feeling has developed when owners, not getting their radios delivered after sufficient lapse of time to make repairs or adjustments, have called at the shop they supposed the set was taken only to find that it was not there.’

“Moore suggests that the best curb on the racket is for the owners of radios to, whenever possible, take the set into the shop in person where, if necessary to leave the radio for any time, a proper receipt will be issued.”

The defendant, George Putnam, is the owner and publisher of the Capital Journal, and his co-defendant, Ray Moore, who had a radio service business in Marion County, furnished the information which constituted the basis of the article to a reporter on the newspaper. Plaintiffs sued the defendants for libel, alleging that the article was published of and concerning the plaintiffs and that they were the only persons in the city of Salem engaged in the radio repair business who maintained a free pickup service and who advertised it in the manner described in the alleged libelous publication, and that the article had injured them “in their persons, reputations and business in the sum of $10,000 general damages and the sum of $10,000 punitive damages.”

As stated by the trial judge in an oral opinion allowing the defendants’ motion for a judgment of involuntary nonsuit, the motion was based upon three grounds: First, that there was no proof of the application of the article in question to the plaintiffs; second, that no damage was shown; and, third, that the article was privileged, and there was no malice, ill will, bad motive or recklessness on the part of the defendants. The judge held against the defendants on the first and second grounds, but was of the opinion that the publication was qualifiedly privileged and that the defendants had not abused the privilege, and that there was no evidence of actual malice. He accordingly allowed the motion. In order to determine whether this ruling was correct, either for the reason given by the court below or for any other reason that has been urged in this court, it is necessary to summarize the evidence, bearing in mind the rule that we must view it in the light most favorable to the plaintiffs.

Plaintiffs commenced their radio repair business on or a little before November 21, 1946, which was the date of the collection of their charge for the first job. The first advertising was somewhat different from that which they used beginning about November 27, and which has been heretofore described. They also put out in various places a small poster advertising their business, but practically no orders were obtained through this source. Between November 21, 1946, and January 11, 1947, when the business came to an end, the plaintiffs received 17 orders in all. The source of nine of these was the telephone number at Perrin’s service station. After the publication of the article only one phone call — which was not productive of an order — was received at the service station as a result of the plaintiffs’ advertising, although, as has been stated, it was continued all through the month of December. In the eight days of November that the plaintiffs carried on their business their gross receipts were $69.50 and expense $27.38; for the whole of December, gross receipts were $90.82, expense $46.71; and in January gross receipts were $26.80, expense $14.85. No orders were received after the 11th of January, and, although they did not abandon their business at that time, “We just didn’t get any more,” as Robert testified.

The day after publication of the article the plaintiffs went to the office of the Capital Journal and interviewed there a Mr. Logan, a reporter, who said he had written the article. They told Logan about their advertisement and asked him to publish an additional article stating who the plaintiffs were, that they were Willamette students who were doing this radio work in their home, that they did not have an established shop but were competent to do the work. Logan refused their request, saying that he could produce a letter written by Mr. Moore from which he got the substance of the article, and that he had grounds for writing it.

The plaintiffs also interviewed the chief of police of Salem, a deputy in the office of the county sheriff of Marion County, and someone in the state police, and ascertained that no complaints had been made to any of these officials of a radio racket such as is described in the publication.

Frank A. Minto, Salem’s chief of police in December, 1946, testified that he could not recall that the plaintiffs had tallced to him about the matter, though he thought that he (Minto) had discussed it with one of his subordinates. He did not remember that any complaints about a radio racket of the kind referred to had been made to him.

Lawrence Osterman, chief deputy district attorney at the time, did not recall such a conversation with the plaintiffs, but testified that no such complaints had been received or were on file in the district attorney’s office.

Alma Malstrom, chief deputy sheriff of Marion County at the time, testified that she remembered a conversation with the plaintiffs concerning such complaints and that none had been made.

There was evidence that friends and acquaintances of the plaintiffs who read the article thought that it referred to the plaintiffs.

Mrs. Richard Mellum, who had known the plaintiffs about five years and knew about the work they were doing in November and December of 1946 and about their advertising, testified that, upon reading the article, she believed that it referred to the plaintiffs’ “new business.” On cross-examination she testified:

“Q You saw in there the use of the expression ‘Slicker’ in the headline, did you?

“A Yes, sir.

“Q And you thought that that was intended to apply to the boys, did you?

“A Yes, I thought it was probably a misinterpretation of what they were doing, as I said before, and I connected their ad with what this said, because as far as I could tell there were no other ads in the paper without any name or address on them.

* * * *

‘ ‘ Q Just the one question, and I want an answer to that one, please: Did you understand that that description of the so-called slickers who didn’t operate from any established shop applied to the Marr brothers?

“A I thought it might apply to them.

“Q Notwithstanding the fact that you knew that they had a shop and were long time residents of Salem?

“A Yes.

“Q You did know that they were long time residents of Salem?

“A Yes.

“Q And responsible people from a responsible family?

“A Yes.

“Q And you knew that they had a shop.

“A Yes.

“Q And you thought it was a reference to the Marrs ?

“A Yes, unfairly.

“Q Did you notice the part of the article that referred to ‘no established shop’?

“A Yes, I had noticed it.”

Several other acquaintances and friends of the plaintiffs testified to the following effect: Dale M. Marsland, who was the proprietor of a market formerly operated by the father of the plaintiffs, when he first read the publication thought that it referred to them, and when they came into the store he asked them if they were the city slickers or radio slickers that were referred to in the paper.

R. J. Chance, a Willamette student, testified that when he read the article his first thought was that “the Marr boys or someone like the Marr boys were running a slicker racket, and since they were in that business I thought that it applied to them or anyone else in that business.” He heard the article discussed in the presence of the plaintiffs and other people and said, “I think they were pretty severely ridiculed by friends. I think I was guilty of it, myself, razzing them about being slickers.” He was asked on cross-examination whether the razzing was done in a serious way or jokingly, and answered, “Well, it seemed ridiculous to me — I thought it was at least that they were running a racket, and it seemed to apply to the way they were running their business, or so-called business; and I felt it was going to affect them, and, if it didn’t, at least it looked like it was speaking about them.”

H. R. Woodburn, Jr., a Willamette student with whom the boys had discussed the methods they were going to use in building up the business, thought that the article applied to the plaintiffs. He heard the matter discussed on the campus of the university, and, in answer to the question whether or not, in his presence and the presence of others, the plaintiffs were accused of the things stated in -the article, he answered: “They were not — It is a little bit difficult to know just what the word ‘accused’ means. If you mean we thought they were slickers or crooks, naturally we didn’t; but if you mean that we thought that the article meant slickers and crooks, we did. But they weren’t accused of being slickers and crooks.”

A. Gr. Hamilton, a building contractor, testified that he thought the article referred to the plaintiffs.

The plaintiffs also testified to statements made to them by friends and acquaintances concerning the article a day or two after its publication. One of their teachers, Professor Brown, at Willamette University, suggested that they were accused of being “slickers.” Jerry Moore said to them, “It looked like we were out of business from that article, and more or less expressed the opinion that it had happened.” Mr. and Mrs. Hamilton, neighbors of John, came to his home on Friday evening, two days after the publication, and asked John what the article had done to their business. Robert testified that some of his fellow students called him a “slicker” and “racketeer,” and asked him when he was going to be thrown into jail. Two days after the article appeared he went to the grocery store where he traded, and the grocer, in the presence of several customers, spoke of the article to him.

John testified that he examined copies of the Capital Journal, the Statesman, and the Capital Press, another newspaper published in Salem, for the ten days immediately preceding the publication of the article and found no advertisement of radio repairmen other than the plaintiffs’, which was in substance the same as that described in the article.

Applicability of Article to Plaintiffs

Section 1-908, OCLA, provides:

“In an action for libel or slander it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff, and if such allegation be controverted, the plaintiff shall be bound to establish on trial that it was so published or spoken.”

See Cole v. Neustadter, 22 Or 191, 199, 29 P 550.

Defendants, by their answer, denied the allegation of the amended complaint that the article was published “of and concerning the plaintiffs.” Under the statute this denial cast upon the plaintiffs the burden of showing that the libel applied to them. This they undertook to do, not only by evidence that they were engaged in the radio repair business in Salem and advertised in the manner described in the article, but that they were the only persons who were so engaged and so advertised, and that at least ten of their friends and acquaintances, who knew about their business venture and their method of conducting it, at once thought that it was the plaintiffs who were the objects of the libel.

The question whether the article applied to the plaintiffs was one of fact. We quote from the authorities :

“Where the defamation complained of is ambiguous in respect of its application to the plaintiff —as where it omits his name or misnames or misdescribes him — most authorities hold that the matter must be submitted to the jury for determination. On the other hand, it has been held that where the complaint contains no colloquium or other allegation tending to show that the matter was directed to the plaintiff, the ordinary and natural meaning of the language is a question of law to be decided by the court.” 38 Am Jur, Libel and Slander, 279, §295.

“Whether plaintiff was the person intended, where the defamatory matter does not show on its face that it refers to him, is a question for the jury, but if there is no ambiguity in the language used in connection with all the attendant circumstances it is a question of law. Where the designating or descriptive words in the publication are not equivocal, and there is no evidence from which it could be reasonably inferred that they were actually intended or understood to apply to plaintiff, the question is one of law, and the court may properly take the case from the jury or instruct them that the words did not apply to plaintiff.” 53 CJS, Libel and Slander, 341, § 224..

See State v. Mason, 26 Or 273, 38 P 130, 26 LRA 779; Ellis v. Brockton Pub. Co., 198 Mass 538, 84 NE 1018; National Refining Co. v. Benzo Gas Motor Fuel Co., 20 F2d 763, 55 ALR 406; Powell v. Young, 151 Va 985, 144 SE 624 (reversed on other grounds, 151 Va 985, 145 SE 731); Memphis Commercial Appeal v. Johnson, 96 F2d 672; Roth v. Greensboro News Co., 217 NC 13, 6 SE2d 882; Jackson v. Consumer Publications, Inc., 256 AppDiv 708, 11 NYS2d 462; Le Fanu v. Malcomson, 1 HLC 637, 9 Eng Rep 910; Mueller v. Radebaugh, 79 Kan 306, 99 P 612; Kilpatrick v. Edge, 85 NJL 7, 88 A 839.

The rule is thus stated in 3 Eestatement, Torts, §564:

“A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands it as intended to refer.”

We quote the following from Comment b to that section:

“If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is immaterial that the defamer did not intend to refer to him. It is not enough, however, that the defamatory matter be actually understood as intended to refer to the plaintiff; such interpretation must be reasonable in the light of all the circumstances. It is not necessary that the plaintiff be designated by name; it is enough that there is such a description of or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended.”

The admissibility of evidence of witnesses, who read the publication and knew the plaintiff that they understood that it referred to him, is established in this jurisdiction by State v. Mason, supra. After observing that there is a conflict of authority on this question, the court, speaking through Mr. Chief Justice Robert S. Bean, said:

“ * * * But, on the other hand, it is held, and we think with the better reason, that when the words are ambiguous as to the person intended, and their application doubtful, persons who read the libel and are acquainted with the parties and the circumstances, may state their judgment and understanding as to whom the libelous charges referred [citing authorities]. The weight of authority undoubtedly supports this latter doctrine, and we understand defendant’s counsel to admit this to be the rule in actions for damages, but he contends it should not prevail in criminal prosecutions. This question, it seems to us, is settled by the statute of this state, which provides that the law of evidence in civil and criminal actions shall be the same, except as otherwise provided in the Code (section 1364); but whether it is or not, we have been unable to discover any difference between civil and criminal actions in the general rule governing the admission of evidence to show that the words were intended to be used in an actionable sense, and, when ambiguous, to whom they were intended to apply. In either case it is incumbent on the plaintiff or prosecution to show by proper averments and proof that the defendant intended to apply the words used to the plaintiff or person designated in the indictment as the subject of the libel; and evidence competent in the one ease must necessarily be so in the other. The object and purpose to be attained by such evidence is the same in civil and criminal cases, and the reason and necessity for its admission applies with equal force to both classes of actions [citing authorities]. In this case the language of the libel, so far as the person referred to is concerned, is ambiguous, and its application doubtful; and therefore, under the rule we have stated, the evidence of the witnesses as to whom they understood it to refer was competent.”

The foregoing language leaves no room for debate as to the applicability of this rule of evidence to civil cases. See, also, Odgers, op cit., p. 126.

The defendants argue that the article does not refer by name or otherwise to plaintiffs and that it cannot be made to do so by allegation or evidence. To support this proposition counsel quote from Odgers on Libel and Slander (6th ed), p. 123, as follows: “An innuendo cannot make the person certain which was incertain before.” The sentence is part of Odgers’ discussion under the heading “Certainty as to the Person defamed.” The entire paragraph from which it is taken, together with the preceding paragraph, is as follows:

“The defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff (see Syme v. Canavan, [1918] V.L.R. 540 (Aus.) ).

“If the words used really contain no reflection on any particular individual, no averment or innuendo can make them defamatory. ‘An innuendo cannot make the person certain which was incertain before’ (James v. Rutlech, 4 Co. Rep. 17 b). So if the words reflect impartially on either A or B, or on some one of a certain number or class, and there is nothing to show which one was meant, no one can sue. Where the words reflect on each and every member of a certain number or class, each or all can sue. ‘Every member of the class who could satisfy the jury that he was a person aimed at and defamed could recover’ (per Farwell, L. J., in Jones v. Hulton & Co., [1909] 2 K. B., at p. 481).” (Italics added.)

Again, at p. 125, the author says:

“Though the words used may at first sight appear only to apply to a class or number of persons, and not to be specially defamatory of any individual, still an action may be maintained by any particular member of that class or number who can satisfy the jury that the words referred solely or especially to himself.”

Several pages are then devoted to illustrations from decided cases of application of this rule, and its eorrollary that “The plaintiff is entitled to recover if he can show that the defamatory words were understood as referring to him by persons who knew him, or if the words are such that the world would apply them to the plaintiff.” See, to the same effect, 3 Restatement, Torts, § 564, and Comment e thereunder.

It is said that the courts “are usually disinclined to allow a recovery if the group or class in question is a large one and the defamatory publication complained of has no particular application to the person who is seeking relief.” 33 Am Jur, Libel and Slander, 182, § 192. But, as stated in the foregoing section:

“ * * * The situation is wholly different when it clearly appears that the alleged defamatory matter points to a particular member of the group or class involved; in such a case, the person so singled out is entitled to redress, and his right thereto is not affected by the circumstance that the language used may also apply to others. It also seems to be an established rule that when a defamatory publication is directed toward a restricted subdivision of a particular class or against a comparatively small group or association of persons, such as a jury, a family, a society, a board of public officers, or the engineers of a particular company, any individual member thereof can maintain an action against the defamer.” (Italics added.)

See, to the same effect, 53 CJS, Libel and Slander, 55, § 11c; case note, 23 LRA NS 726; Louisville Times v. Stivers, 252 Ky 843, 68 SW2d 411, 97 ALR 277 with annotation at p. 281.

The case note in 23 LRA NS 726 has been more than once cited by the courts as authority. It distinguishes between the words “class” and “group.” “ ‘Class’ is to be regarded in its most general sense, and as having reference to a large number of persons who may be designated collectively by a single name, irrespective of geographical limitation, political subdivision, place of abode, or any similar restriction.” Professional men and public officers generally are said to belong to classes, while, if only those within a certain city are referred to, they may be said to form a “group.” The distinction is recognized and approved in Louisville Times v. Stivers, supra. We quote further from the ease note:

“The question here considered is, Admitting or conceding that the language used would be libelous if it had been directed at the plaintiff personally, is it actionable when directed impersonally at a class or group to which he belongs ? It may be said generally that, if the language is so used as unerringly to point to plaintiff, his right of action is not affected by the fact that it is also applicable to others; and, although the language may not on its face refer to the plaintiff, he may maintain his action if he can establish its application to himself.

“But if there is nothing in the language employed which, by proper inducement or colloquium, can be given personal application to the plaintiff, he has no right of action. * # *

“Keeping in mind the sense in which the word ‘class’ is used in this note, it may properly be said that an individual who is not named cannot maintain an action. for the publication of matter in derogation of the class to which he belongs.

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“In this connection another distinction, in addition to that between class and group, should be kept in mind. If the defamatory matter is used toward the entire group, — that is, includes all of them, — it may generally be said to refer to each, so that each may sue. On the other hand, if the language is used indefinitely or impersonally toward one or a few of several members of a group, any member must establish its application to him in order to maintain his action.”

The rule is thus stated in Newell, Slander and Libel (4th ed), 262, § 220:

“Where defamatory matter is published against a class or aggregate body of persons, an individual member not specially included or designated cannot maintain an action, for this, among other reasons that the body may act very corruptly or disgracefully, and yet the individual may have been in the minority and may have opposed measures alluded to; but where many individuals are severally included in the same attack, whether by the language of the satirist or the pencil of the caricaturist, the plaintiff is none the less entitled to redress because others are injured by the same act. But the words must be capable of bearing such special application to plaintiff. There must be an averment in the statement of claim that the words were spoken of plaintiff, and plaintiff may also aver extraneous facts, if any, showing that he was the person expressly referred to.”

Leading cases involving defamation of a group are Ryckman v. Delavan, 25 Wend 186, in which the court held that a member of one of six firms engaged in brewing and malting in a certain locality could maintain libel for the publication of an article charging that they engaged in unwholesome and filthy practices in the process of malting where it was false and malicious; and LeFanu v. Malcomson, supra, where it was held that the proprietors of a factory in a certain county in southern Ireland could maintain an action for the publication of a libelous article calling attention to factory abuses in such county, stating that, in some factories in Ireland, tyranny, oppression, Sabbath-breaking, and extortion were practised, and that the author had one in mind in the south of Ireland, where the jury found that the article applied to the plaintiff’s factory. In the later case Lord Campbell, answering the objection that because the libel applied to a class of persons an individual could not apply it to himself, used these frequently quoted words:

“Now, I am of opinion that that is contrary to all reason, and is not supported by any authority. It may well happen that the singular number is used; and where a class is described, it may very well be that the slander refers to a particular individual. That is a matter of which evidence is to be laid before the jury, and the jurors are to determine whether, when a class is referred to, the individual who complains that the slander applied to him is, in point of fact, justified in making such complaint. That is clearly a reasonable principle, because whether a man is called by one name, or whether he is called by another, or whether he is described by a pretended description of a class to which he is known to belong, if those who look on, know well who is aimed at, the very same injury is inflicted, the very same thing is in fact done as would be done if his name and Christian name were ten times repeated.”

See, also, Lathrop v. Sundberg, 55 Wash 144, 104 P 176.

On the other hand, as illustrative of what is termed a “nonactionable class libel,” attention is called to Watts-Wagner Co., Inc. v. General Motors Corporation, 64 F Supp (SDNY) 506, in which recovery was denied where the alleged libel contained a warning to the public and to battery dealers about an “army of racketeers who are sweeping the country, taking advantage of the circumstances by selling the unwary car owner or battery dealer some fancy packaged flour, sand, Epsom Salts, or just any old white powder as a panacea for all battery troubles. ’ ’ Plaintiff alleged in his complaint that he was engaged in the manufacture, sale and distribution of a product designed to lengthen the useful life of electric storage batteries and increase their efficiency. Apart from this, there was no suggestion in the article that the plaintiff and his product were the objects of the words. The court said that a reading of the alleged libelous matter clearly indicates that it had a nationwide aspect and application, and that if it related to the plaintiff “it was only by reason of extrinsic facts and circumstances and these are not pleaded”; and further that “if it is not apparent from a fair reading of them that the statements concerned the plaintiff, a cause of action may not be read into them by the claim that the plaintiff was the intended party, or by extending their meaning through innuendo.”

Again, when slanderous words were used about one of a group of about 25, and there was nothing to show that they were specially directed to the plaintiff as an individual, recovery was denied. Blaser v. Krattiger, 99 Or 392, 195 P 359.

Cases relied on by the defendants in which the allegations of the complaint affirmatively excluded the plaintiff as the person libeled are not in point. Among these is Fleischmann v. Bennett, 87 NY 231, in which the plaintiff pleaded himself out of court by alleging that he was not in any manner a copartner, owner or agent in any business such as was described in the article, which referred solely to a business carried on by a certain firm and was directed wholly against that firm and its business. While no person was referred to in the article except members of the firm, the plaintiff expressly alleged that he was not a member of the firm and that he had no connection therewith. Similar cases are Corr v. Sun Printing & Publishing Association, 177 NY 131, 69 NE 288; Dunlap v. Sundberg, 55 Wash 609, 104 P 830, 133 Am St Rep 1050; and Blaser v. Krattiger, supra.

The defendants say that innuendo may serve to explain precedent matters but never to establish a new charge or enlarge or change the previous words, citing Peck v. Coos Bay Publishing Co., 122 Or 408, 259 P 307, and Cole v. Neustadter, 22 Or 191, 29 P 550. This, of course, is true, and, if this were a case in which the plaintiffs’had alleged facts in their complaint which showed that the article did not apply to them, or if the article itself were susceptible of such a meaning, it would avail them nothing to allege, in the language of the statute, that the defamatory matter was published or spoken concerning them. See Dunlap v. Sundberg and Fleischmann v. Bennett, both supra. Innuendo, however, may be “properly used to point the meaning of the words alleged to have been spoken, in view of the occasion and circumstances, whether appearing in the words themselves, or extraneous prefatory matters alleged in the declaration.” McLaughlin v. Fisher, 136 Ill 111, 116, 24 NE 60. “Such an innuendo does not extend the meaning of the defamatory matter; it only points out the particular individual to whom such matter does in fact apply. The decision of the jury on the point is practically conclusive.” Odgers, op. cit., p. 125. Here the extraneous prefatory matter which justified the claim, so far as the complaint is concerned, that the words were printed of and concerning the plaintiffs, is the allegation that the plaintiffs were the only persons in the city of Salem engaged in the radio repair business who maintained a free pickup service and who advertised said service in the manner described in the article. And the proof tended to support that allegation.

The defamatory article here under consideration was, in the language of American Jurisprudence above quoted, “directed toward a restricted subdivision of a particular class,” that is to say, toward every person in the city of Salem who carried on the business of repairing radios in the manner described in the publication; and, under the authorities cited, every member of the group, if there were more than one, as to whom the charges were false, wopld have a right of action against the defendants. And, on the evidence before us, the truth of which must be deemed conceded, the plaintiffs were the only persons in the city of Salem to whom the article was applicable. The evidence would justify a finding that it not only hit the plaintiffs but was aimed directly at them.

In view of the attempt to dilute the evidence of the plaintiff, John Marr, that the plaintiffs were the only radio repairmen in Salem who advertised in the manner described in the article, by referring to Eobert’s testimony to the effect that he did not know whether this was so or not, we find it necessary to call attention again to the fact that we are dealing with a motion for a judgment of involuntary nonsuit, and to reiterate the familiar rule that, in considering such a motion, plaintiffs’ evidence is deemed to be true, and every inference of fact that can be reasonably and legitimately drawn therefrom shall be given effect; and the evidence must be interpreted in the light most favorable to plaintiffs. Bradford v. Bradford, 165 Or 297, 303, 304, 107 P2d 106. Unless, therefore, we are to ignore a rule of procedure that is as firmly established as anything in the law — a rule, we assume, which no lawyer would question for a moment — it is our duty to accept as true John’s testimony upon this point and to give to Eobert’s no weight or consideration whatever.

Defendants’ counsel argue, however, that the words could not be reasonably understood as applicable to the plaintiffs because they had “an established shop.” They say in their brief that the article “merely cautioned the public to beware of the fly-by-night person having no established shop, as distinguished from appellants who were long-time residents of Salem and who did have an established shop.” Of course, the article does not mention fly-by-night persons, and it contains no language which would exclude long-time residents of Salem.

We are to read the article as a whole in order to determine the sense in which particular words were used. Boehmer v. Detroit Free Press Co., 94 Mich 7, 10, 53 NW 822, 34 Am St Rep 318. Its opening sentence is, “Established radio dealers and repair plants in the city are becoming alarmed over what appears to be a ‘radio racket’ ”, etc. The article proceeds: “The common practice of these slickers is not to operate from any established shop but just give a phone number of call and offer free pick-up service”. “In most instances,” it is said, “the name is not listed * * * In some cases the customers were told that the radios would be taken to some well-known or established shop and considerable ill-feeling has developed”, etc.

It will be observed that the word ‘ ‘ established ’ ’ is used three times, and it may reasonably be understood to have the same meaning throughout. It once modifies “radio dealers and repair plants” (meaning, we take it, the owners of such plants because a repair plant could not become alarmed), and twice modifies “shop”. In its final use it is treated apparently as a synonym of “well-known.” One definition of “established” is “made stable or firm”: Websters New International Dictionary (2d ed). “Establish” means “settle securely, as in a business”: Funk & Wagnall’s New Standard Dictionary; “to set up on a secure or permanent basis”: The Oxford English Dictionary.

We are of the opinion that the phrase “established shop”, in the context of the article and interpreted with reference to the circumstances of the plaintiffs, is not of any certain meaning. The distinction that the article appears to endeavor to bring home to readers of the paper is one between persons engaged in the business of dealing in and repairing radios, who conducted their business in the conventional maimer and had become established in the business life of the community and those who, like the plaintiffs, advertised in the manner described and were not so established.

Had the article used the word “shop” without the qualifying adjective there might be merit in the defendants’ contention, for, while the plaintiffs undoubtedly had a shop, the question is whether they “operated” from an established shop. They were students in college, endeavoring to add something to their incomes from the government by a small part-time business of radio repairing, done in a shop fitted out in the attic of the home of one of them. This business was not carried on in the name of anyone so far as the general public were concerned. It had been in existence for only two weeks prior to December 4, 1946, and during that time its gross receipts were about $125.00. It had no telephone listing, and, so far as appears, no customers were solicited to come to this shop for the transaction of business. Plaintiffs’ friends and acquaintances who read the article might readily conclude that this shop was not stable or firm or set up on a secure or permanent basis, and that their precarious business venture was not an ‘ ‘ established shop ’ ’ in the sense of the article. Assuming that the words might be susceptible of the meaning attributed to them by the defendants, “the matter then presents a question for the jury to decide, i. e., whether the one meaning or the other was in fact conveyed to the readers of the publication.” Kilpatrick v. Edge, supra, 85 NJL at p. 9.

The fact, as stated in the defendants’ brief, that “there was no evidence which indicated that respondents were acquainted with appellants, or had ever heard of them” is immaterial. The question “is not who was aimed at, but who was hit.” Laudati v. Stea, 44 RI 303, 117 A 422.

“If the defendant’s words have in fact injured the plaintiff’s reputation, it is no defense to an action that the defendant intended them to refer to some one else. He should have been more explicit; his secret intention is immaterial. The plaintiff is entitled to recover if he can show that the defamatory words were understood as referring to him by persons who knew him, or if the words are such that the world would apply them to the plaintiff.

“ 1 Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot show that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred from what he did. His remedy is to abstain from defamatory words’ (per Lord Loreburn, L.C., ib., [1910] A.C., at pp. 23, 24.” Odgers, op. cit., 128, 129.

See, also, DeLashmitt v. Journal Publishing Co., 166 Or 650, 114 P2d 1018, 135 ALR 1175; 3 Restatement, Torts, § 564, Comment b.

We conclude that persons with a knowledge of the circumstances could reasonably have understood upon reading the article that it referred to the plaintiffs and the question whether it did in fact refer to them was for the jury.

Damages

We find no argument in defendants’ brief in support of the claim that there is no evidence of damage to the plaintiffs other than the following statement: “The evidence showed that after one of appellants had resumed the radio repair business under his own name, his business was ‘all right’. It is apparent from appellants ’ evidence, generally, that publication of the article occasioned no damage to appellants or their business.” Inasmuch as the evidence shows that after publication of the article not a single order was received by plaintiffs over the Shell service station telephone, it can hardly be said that this view of the ease is supported by the record. The jury would certainly have been justified in finding that this decline of business was the consequence of the libel and not a mere coincidence.

But, quite apart from tMs evidence of actual loss, if the article was libelous per se, damages will be presumed as a consequence of its publication. Peck v. Coos Bay Times Publishing Co., supra, 122 Or 418; Newell, op. cit., 843, § 756; 53 CJS, Libel and Slander, 378, § 262.

The article accused the persons to whom it referred of being “slickers” and of worMng a “radio racket.” A “racket” is “A dodge or trick; a fraudulent scheme, game, or the like”: Webster’s New International Dictionary (2d ed). See Kinsley v. Herald & Globe Association, 113 Vt 272, 34 A2d 99, 148 ALR 1164. A “slicker” is “A slick person; a clever trickster or cheat.” Id. The racket or fraudulent scheme is described in the article as the gaining possession of radios by the slickers under the pretense of undertaking to repair them and then failing to return them to the owners.

Whether an article is libelous per se is a matter of law for the court to determine. Peck v. Coos Bay Times Publishing Co., supra, 122 Or 418, and cases cited; Kilgore v. Koen, 133 Or 1, 9, 288 P 192. In the Coos Bay Times case this court approved the following definition of libels actionable per se taken from 36 CJ, Libel and Slander, 1164, § 28:

“ * * * defamatory words to be libelous per se must be of suck a nature that the court can presume as a matter of law that they will tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule, or cause him to be shunned and avoided.”

See, also, Reiman v. Pacific Development Society, 132 Or 82, 88, 284 P 575.

In the Coos Bay Times case we held it libelous per se to charge a man with being a “double-crosser.” There can be no doubt that the words here complained of are equally objectionable.

Something has been sought to be made of the fact that as the evidence indicates, the high esteem in which the plaintiffs were held by their friends was not altered by the publication. This is a strange argument. Its acceptance would sanction a new principle in the law of libel, under which the spotless character and unassailable reputation of the person wrongly accused would afford immunity to his defamer.

Qualified Privilege

By their answer the defendants admitted the allegations of the amended complaint that the plaintiffs were not slickers and had not committed any of the dishonest or fraudulent acts charged in the article, at the same time that they denied that the article was intended to or did apply to the plaintiffs. Affirmatively the defendants pleaded what is claimed to be a qualified privilege as follows:

“IV

“At the time of such publication of said article, it was a matter of honest and sincere belief, reasonably founded, of and among persons engaged, or interested, in tbe radio service business in said state that unscrupulous, as well as scrupulous, persons had been, and were, engaged in the practice of soliciting, in the United States, radio service business by advertising so-called ‘pick-up and delivery service/ or similarly, calculated to result, and resulting, in their being enabled to take and remove radios from the possession of the respective owners thereof for the purpose of repair and servicing. Whereas such scrupulous class of persons so engaged in such practice, after having so obtained possession of radios from the respective owners, thereof, repaired or serviced such radios and thereafter returned such radios to such respective owners, such unscrupulous class of persons, likewise ostensibly engaged in the same practice, but actually engaged in the practice of permanently depriving such owners of further possession of such radios, obtained possession of radios by the means aforesaid and failed to return them to the owners thereof, and, on the contrary, retained or disposed of such radios to their own profit - and advantage, and to the loss and damage of such owners. So believing, as aforesaid, of the existence of such practice on the part of such unscrupulous persons, defendants, in fulfilling their moral, civic and social duties to society and the public at large, in good faith, and without malice, and without intent or purpose to injure -or defame plaintiffs, or either of them, and without therein, or otherwise, referring to plaintiffs, or either of them, and in honest, sincere and reasonably-founded belief of the truth thereof, caused said article to be published in said Capital Journal as a warning to innocent and uninformed owners of radios who would, or might, if not so warned, suffer loss and damage in the manner hereinabove mentioned.

“V

“All matters and things appearing in said article were, upon such publication thereof, true and accurate in substance and in fact, and such publication of said article was privileged and justified by the occasion and circumstances aforesaid, not only in the interest of the public at large, but also in the interests of all reputable persons, including said defendant Moore, engaged in the radio service business who theretofore had been, and then were, suffering inconvenience, annoyance and damage as a result of such practice engaged in by such unscrupulous persons”.

Defendants attempt to support the foregoing defense by the following proposition:

“Matters of public interest and concern are legitimate subjects of criticism, and everyone has a right to comment thereon as long as he does so fairly and with an honest purpose. Such comments or criticism are not libelous, however severe in their terms, unless they are made maliciously.”

They cite 33 Am Jur, Libel and Slander, 155, § 161; Peck v. Coos Bay Times Publishing Co., supra; and Kilgore v. Koen, supra.

As the cited section in American Jurisprudence states, many cases consider the right to comment on matters of public interest an application of the general principle of the technical qualified privilege, while others treat them as different principles. It is perhaps not important here to dwell upon that subject, but there is one distinction (assuming for the moment that the rule concerning comments on matters - of public interest is applicable to this case) which cannot be ignored. It is thus stated in Odgers, op. cit., 162:

“ * * * the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.”

The Coos Bay Times case illustrates the application of the foregoing rule. While the plaintiff was not a candidate for a public office and did not occupy a public position, yet, because he was a leader in political activities and therefore invited more or less criticism from those who were not his supporters, it was held that the newspaper had the right to make fair comment and criticism upon plaintiff’s alleged unreliability in political matters affecting the public interest. “When a man enters the political arena”, it was said by Mr. Justice Belt, speaking for the court, “even though not a candidate, he must not .be too sensitive about criticism. There are generally blows to receive as well as to give. While a newspaper, under the guise of qualified privilege, has no right to defame a person or to injure that which is his most valuable property right— a good name, it is no longer, in reference to matters of public interest, obliged to speak with bated breath.” (122 Or 420, 421.) But it was held that the defense of qualified privilege or fair comment availed nothing relative to the charges that plaintiff committed a premeditated and vicious assault and that he was a double-crosser. As to these matters the court said: “Privilege ends where defamation begins. Relative to charge of commission of crime, truth was the only defense.”

The decision is squarely against the defendants and is in accord with the weight of authority. See Upton v. Hume, 24 Or 420, 33 P 810, 21 LRA 493; Burt v. Advertiser Newspaper Co., 154 Mass 238, 28 NE 1, 13 LRA 97 (per Holmes, J.); Washington Times Co. v. Bonner, 66 App DC 280, 86 F2d 836, 110 ALR 393, with extensive annotation beginning at p. 412.

Kilgore v. Koen, supra, the only other case cited by the defendants, does not involve a fair comment but the technical qualified privilege. The article claimed to be libelous was the newspaper account of the arrest of the plaintiff on a charge of theft and of the evidence relied on by the officers to secure his conviction. The publication was held to be privileged under the rule that a full, fair and impartial report of judicial proceedings is qualifiedly privileged even though the report contains matters that would otherwise be defamatory and actionable. No action will lie for making such a report except on proof of malice. The case is, of course, without any direct bearing here, while, under the Coos Bay Times decision, since the article now in question contains defamatory statements of fact, concededly not true of the plaintiffs, the defense of qualified privilege is not available to the defendants.

Apart from this, there is nothing in the record before us to justify a court in holding that the subject-matter of the article was of “public interest”, within the meaning of the rule of qualified privilege. See 33 Am Jur, Libel and Slander, 161, § 167; Ann Cas 1917B 42A-426.

It is well to bear in mind that the publisher of a newspaper possesses no immunity from liability on account of a libelous publication not belonging to any other citizen. In either case the publisher is subject to the law of the land, and, when the publication is false and defamatory, he must answer in damages to the injured party. Kilgore v. Koen and Upton v. Hume, supra. It is no defense to defamation to say that the defendant believed the charges to be true. No matter how honest his motive, a journalist has no right to proclaim to the world that a particular individual is a thief or a murderer or that he has committed any other crime in the catalogue of crimes. The only thing that can justify that is that it is true. Upton v. Hume, supra, 2A Or 433. So, also, of the plea that the defendants acted bona fide in the discharge of what they believed to be their duty. Smart v. Blanchard, 42 NH 137, 151. It is true of newspapers as of others, including business competitors such as the defendant Moore, that “One may not go about in the community and acting upon mere rumors proclaim to everybody the supposed frailties or bad character of his neighbor, however firmly he may believe such rumors, and be convinced that he owed a social duty to give them currency, that the victim of them may be avoided”. Byam v. Collins, 111 NY 143, 19 NE 75, 2 LRA 129; 33 Am Jur, Libel and Slander, 127, § 127. See, also, Foster v. Scripps, 39 Mich 376, 380, 33 Am Rep 403; Detroit Daily Post Co. v. McArthur, 16 Mich 447, 451; Perret v. New Orleans Times Newspaper, 76 La 170, 177; Usher v. Severance, 20 Me 9; Mallory v. Pioneer-Press Co., 34 Minn 521, 522, 26 NW 904; McDonald v. The Sydney Post Publishing Co., 39 NSR 81; Newell, op. cit., 554, § 505.

We think there is no substance in the claim of qualified privilege in this case and that, for this reason and the other reasons stated, it was error to grant the motion for an involuntary nonsuit.

Sufficiency of the Amended Complaint

It has been suggested, however, that this action must be stopped because the plaintiffs are improperly joined. No challenge of this kind has been made by counsel for the defendants at any stage of the proceedings from the filing of the initial complaint until now. But it is said that the amended complaint, on which the case was tried, was fatally defective because it does not show a joint injury to the plaintiffs, and that this is a question which the court will notice of its own motion. We are told further that a general demurrer filed by the defendants to the amended complaint was appropriate to raise the question of misjoinder, and therefore that the amended complaint is to be construed most strongly against the pleader.

While it is well settled that when words are spoken of two or more persons they cannot join in an action for the words because the wrong done to one is no wrong to the other, a well recognized exception to this rule is where defamatory words are published of partners in the way of their business. Newell, op. cit., 343, § 307; Odgers, op. cit., 475; LeFanu v. Malcomson, supra; Weitershausen v. Croatian Printing & Publishing Co., 151 F 947; Wright v. Afro-American Co., 152 Md 587, 137 A 273, 52 ALR 908, with annotation at p. 912 in which numerous cases supporting the exception are digested.

The evidence as to the relationship between the plaintiffs discloses that they were partners in the radio repair business. This evidence came in without objection and was clearly admissible under the allegations of the amended complaint. That pleading showed a joint interest of the plaintiffs in the subject matter of the action and a joint injury for which they were entitled on proper proof to recover a joint judgment. To maintain such an action it was not essential that the plaintiffs allege a partnership. It was enough that they stated facts from which it appeared that they were jointly interested. It is immaterial that they could not recover a joint judgment for injury to their reputations, for, if the publication affects the plaintiffs in their joint capacity, they may sue jointly. 53 CJS 243, § 159; 37 CJ, Libel and Slander, 19, § 321. If a complaint states grounds for any kind of joint relief a demurrer for misjoinder of parties plaintiff cannot be sustained. 1 Bancroft’s Code Pleading, Practice and Bemedies (10 Year Supp) 111, §204; Speyer v. School Dist., 82 Colo 534, 261 P 859, 57 ALR 203. So, it was said by Judge Hough in Weitershausen v. Croatian Printing & Publishing Co., supra:

“It results, therefore, that all persons injured by libel or slander, and having a community of interest as to the subject-matter of defamation, may sue either jointly or severally, and, if the matter complained of be libelous per se, it is no more necessary to allege special damage in the joint action than it is in the several suits.”

The amended complaint alleged:

“That at all times herein mentioned plaintiffs were engaged in the radio repair business in the city of Salem, Marion County, Oregon, and in connection with said business maintained a free pick-up service and advertised said service in the daily papers of the city of Salem, Marion County, Oregon, in the following language: ‘GrUABANTEED BADIO SEBVTCE, Free pick-up delivery. Ph. 9098.’ ”

It was further alleged that at the time of the publication of the article complained of plaintiffs “were the only persons in the city of Salem, Oregon, engaged in the radio repair business who so maintained a free pick-up service and who so advertised said service,” and that “said publication has injured plaintiffs in their persons, reputations and business in the sum of $10,000 general damages” (italics added). Beading all of these allegations together, it is clear that the plaintiffs were jointly engaged in the described business. They alleged that they were damaged in their business —not that each of them was damaged in a separate business individually owned.

We hold that the amended complaint states sufficient facts to show a joint right of action in the plaintiffs for libelous words published of them in the way of their business; and that, even though it be proper to challenge a misjoinder of parties plaintiff by general demurrer, the amended complaint was not vulnerable to such an attack.

The plaintiffs (assuming that the jury should find that they are referred to by the article) are charged with dishonesty in conducting the firm’s business, and “if the matter complained of be libelous per se it is no more necessary to allege special damage in the joint action than it is in the separate suits.” Newell, op. cit., 361, § 324. In Odgers, op. cit, 317, it is said:

“Again, where words are spoken of the plaintiff in the way of his profession or trade, so as to be actionable per se, the plaintiff may allege and prove a general diminution of profits or decline of trade, without naming particular customers or proving why they have ceased to deal with him * * * . The law already presumes that the plaintiff is injured in his business by the defendant’s words; evidence as to the nature of the plaintiff’s business before and after publication is admissible to show the extent of such injury.”

See, to the same effect, Wayne Works v. Hicks Body Co., 115 Ind App 10, 55 NE2d 382; Sternberg Mfg. Co. v. Miller & Peters Mfg. Co., 170 F 298, 18 Ann Cas 69; cases cited in the dissenting opinion in National Refining Co. v. Benzo Gas Motor Fuel Co., supra; 53 CJS, Libel and Slander, 365, § 242. In Sternberg Mfg. Co. v. Miller & Peters Mfg. Co. the court said:

“It is a charge, too, of that peculiar misconduct which naturally and directly brings down upon the offender’s business the disapprobation of the public and necessarily entails injurious consequences. It is, therefore, according to well recognized law, actionable per se [citing cases]. Being so actionable, damages ensued as a necessary consequence; and it was not necessary to plead special damages to constitute a cause of action.”

In this connection notice will be taken of an objection that the article here in question is not libelous per se because it does not name the plaintiffs, thus requiring extrinsic evidence to show its application to the plaintiffs, and, therefore, that special damages must be alleged and proved. A similar contention was sufficiently answered by the United States Circuit Court of Appeals for the 8th Circuit in National Refining Co. v. Benzo Gas Motor Fuel Co., supra, which was an action for libel of the plaintiff’s product by the distribution of leaflets which did not mention the plaintiff or its product. The court said:

“We think there is no merit in the first contention. It is not necessary that the party libelled should be named in the libelous article. Whether an article is of a libelous character per se, and whether it has application to a particular party plaintiff, are entirely distinct questions, and should not be confused. The answer to the first question is to be found in the article itself. The answer to the second question is to be found in the proofs supporting proper allegations in the complaint. Those proofs may consist either of the article itself, or of extrinsic evidence.”

As stated, the plaintiffs, who were partners in the radio repair business, alleged that the publication complained of had injured them “in their persons, reputations and business in the sum of $10,000”. They were charged with “that peculiar misconduct which naturally and directly brings down upon tbe offender’s business the disapprobation of the public and necessarily entails injurious consequences.” Under the authorities above cited they were entitled to maintain this joint action for damages to them in the way of their business, and it was unnecessary for them to plead special damages.

We conclude that the motion for judgment of nonsuit should have been denied and the defendants required to go forward with the evidence. The effect of such a decision, it is perhaps needless to state, is not to “recognize liability”; it means merely that the plaintiffs have made out a case sufficient to be submitted to a jury. The question of liability will be for the jury to determine after a trial on the merits.

Plaintiffs’ brief contains an assignment of error based on the court’s rulings on the voir dire denying plaintiffs’ challenges to six prospective jurors. As the jury was not given an opportunity to pass on the case, the question raised is purely academic and we must, therefore, decline to rule upon it.

The judgment is reversed and the cause remanded for further proceedings in conformity to this opinion.