*1 17 Argued. April 4, 1957, February 26, affirmed
MARR et al v. PUTNAM al et
Wallace Moody appellants. him the briefs were With on & and Allan Salem. Carson, G-. Lamldn, argued the cause for Winslow, Salem, Norman K. respondents. him on the briefs was W. C. Wins- With Salem. low, Justice,
Before Chief Perry, Lusk, Bossman, Justices. McAllister Hester, Brand, J. KESTER, appeal by judgment from a
This is an defendants plaintiffs in an action of libel. previously in this court after a The case was non- granted. In had been Marr v. Putnam, 1, suit Or judgment of nonsuit P was reversed and was remanded for new trial. The case was the cause pleadings, plaintiffs’ again on the same tried substantially trial was on the second the same evidence the first trial. The returned a verdict for as on *4 upon plaintiffs in the amount of $4,000, appeal judgment from which was entered this is taken. prior opinion, full discussion in In of the view of facts will be brief. John E. Plaintiffs, our statement Marr B. were brothers, and Robert who Marr, city engaged repair in a small business radio they at as a sideline while were students Salem, University. workshop Willamette Their was in the repair and did the house, attic John’s John work Robert attended while to business end. Business primarily by newspaper advertising, was solicited and part continuously latter from the of November until the end inserted in December, 1946, the two daily newspapers, Capital Salem Journal and the Oregon following Statesman, advertisement: “GUARANTEED Free SERVICE, RADIO
pick-up delivery. and Ph. 9098.” phone number was that aof service station, operator agreed accept of which had calls practice upon receipt their was that them; telephoned picked up orders Robert the radio sets repaired, and took them to John’s house to be after which Robert redelivered the sets the owners. On (who December 4, 1956, defendant Putnam was owner publisher Capital Journal), acting of the on in- supplied (who operated formation defendant Moore repair published Salem), a full-time radio business in Capital following in the Journal article:
“SLICKERS WORK RADIO RACKET repair plants “Established radio dealers city becoming are appears alarmed over what a ‘radio racket’ which to be their sets and causes owners to lose
much part embarrassment dealer. “ practise [sic] ‘The common of these slickers operate shop just is not established but phone give a number pick-up of call and offer free according Ray service,’ Moore, 3720 Portland personal experience along who has had road, this line.
“ and ‘In most name is not listed instances the impractical properly most it to since radios is service away that in the the set is taken and home, cases of his radio. In is the last owner sees some he customers told that the radios would the taken were shop and established to some well-known or ill-feeling developed owners, has when considerable getting after their radios delivered sufficient not lapse adjustments, repairs have time make shop they supposed taken the set was at the called only find that it was not there.’ suggests racket that curb on the the best “Moore possible, take to, radios whenever is for owners of necessary person shop where, if into the the set to receipt proper for time, the radio leave will be issued.” plaintiffs guilty not
It admitted that story; newspaper practices but to in the referred abstractly the article was that defendants contend and could not rea- intended, that was true, and plaintiffs. sonably to refer to understood, have been alleged evidence, however, and offered Plaintiffs publication of and for some article, at the time of only they persons prior were the Salem time thereto, repair conducting business who advertised in a radio they offered evidence that some manner; thought paper article referred to of the readers publication re- article, After them. by only of their call means advertise- one more ceived ment. applying
Upon trial the the law court, second appeal, on former limited the issues as determined (1) jury newspaper to: whether to the submitted plaintiffs; applicable (2) if so, was article damage plain- caused actual whether if what amount. so, The business, tiffs’ per was the article libelous and that se, was told if it to at was directed to were entitled damages. compensatory nominal matter least damages expressly plaintiffs’ limited to business, distinguished personal damages, and the claim punitive was withdrawn the court. twenty-four
Appellants
assignments
submit
present questions
most of which
that were
error,
de
adversely
appeal.
termined
to defendants on the former
*6
Under the well-settled doctrine of “the law of
case,”
controlling,
former decision must be deemed to
be
questions
far
are the same.
so
as
Public Market v.
Or
170 P2d
cert.
Portland,
367, 373,
586,
179
den. 330
Realty,
Portland T. & Bank v. Lincoln
829;
US
S.
187
211 P2d
Finn v.
P.
443, 451,
736;
Or
S. & 194
S.,
Or
Defendants ask that the former decision and be reconsidered overruled. that However, decision was the result careful deliberation —the case was argued reargued, dissenting and once then the two opinions further necessitated and after consideration, opinion petition rehearing was announced a for agree ap considered and denied. was While we with blindly pellants that court should not adhere to a manifestly stability that is decision former erroneous, requires very cogent that there law be reasons abandoning particularly a former decision, when parties plead the same and on it was between the same ings. assignments number of defendants’
A of error 9) (Nos. and relate to the admission 5, 6, 7, in evi testimony by various witnesses dence who knew plaintiffs their and who business, had read the newspaper at about the published,
article time it was thought upon reading applied plain it it, who, and to argument here Defendants’ is twofold: tiffs. First, ambiguous, that the article was and therefore n testimony was not admissible event to show its applicability plaintiffs; to Second, these wit- specially qualified nesses were not shown to be applicability plaintiffs. an draw inference of its arguments prior opinion. are foreclosed appeal, In that as defendants here, contended that the inapplicable plaintiffs article was aas matter of question applicability it but was held that the law; jury. was one of and for the fact, On the issue of published reasonably whether the article could have applying interpreted plaintiffs, been evidence persons familiar with was admissible did and their business so construe it. The same evi- offered on the former trial dence was as is referred assignments, objections and the to in these same competent court deemed but this the evidence made, gave weight passing upon relevant and special propriety qualification of the nonsuit. No necessary, familiarity other than the witnesses’ with operation. Odgers and their method of on pp ed, 6th 559. Libel Slander *7 that in v. true State 26 It is Or Mason, 273, 275, admissibility LRA the 779, 26 of 130, P such 38 evi predicated the fact that dence was the article ambiguity ambiguous. But the in that case was existed story merely expressly fact that the news in the did not subject person who was the of name article, person therefore admissible to proof show was article referred. The same whom situation to exists ease. this in assignments group (Nos. of
Another error question, 4) a similar raises but once 3 re 1, 2, was admitted as to the Evidence moved. statements of respect persons applicability plain- with to to third
25 published In each instance a witness tiffs of the article. permitted testify an- was as to a with conversation presence person, other out of and not court, person’s other either of the wherein the defendants, interpreted the article as comments indicated that he grounds referring plaintiffs. a number of While objection argu- were stated the lower court, objection ment limited to the that the statements here is hearsay. were hearsay exclusionary of the rule is not
The
force
extra-judicial
applicable when the
statement of a
prove
person
third
is not offered to
the truth of the
only
but
to show that
the statement was
utterance,
the mere fact that
made. Where
statement was
regardless
independently
made is
of its truth
relevant,
falsity (as,
example,
or
to show the state of mind
issue),
fact
where that
such
declarant,
Wigmore on
evidence is admissible.
3d
Evidence,
ed,
Am
§457;
Jur
Evidence
31
§1789;
404,
988,
CJS
Wayne
§
v. Huber,
Evidence
see
134 Or
239;
464, 503,
P
Assignment No. 10 is directed to the exclusion of copies “Q”. defendants’ exhibits “P” and These were pages Oregon newspaper published of of the Journal, April containing in dated the fol- Portland, 4, 1945, lowing advertisement: 3-day “RADIOS service. Free REPAIRED — delivery
pickup, prices. and estimates. Guaran- OPA us years exp. teed work. 15 or Call now. MU 4530 BR1986.” purpose
Defendants state that the offer only “to show in were not that, fact, persons locality by identify had who advertised in this ing by telephone only.” themselves take number, We judicial phone notice that in numbers the last- quoted phone advertisement were Portland numbers, Oregon and that the has It Journal Salem circulation. placed Oregon is not contended that those who guilty practices Journal advertisement story. condemned defendants’ news previously, plaintiffs alleged As mentioned only proof were the offered ones who thus repair (1) city a radio advertised service: (2) at the time of Salem; the article prior and for some time thereto. Defendants’ conten- that the news article was not limited as to tion is place practices and therefore mentioned, time they permitted prove should be advertisements twenty previously. paper, a Portland some months says the article that “Established radio However, repair plants city becoming in the are dealers * * (Emphasis ours.) alarmed Furthermore it “* * * of the information as describes source ac- Ray cording [a 3720 Portland road Moore, Salem *9 along experience personal this who has had address], entirely present speaks tense. We in and it line;” say import flunk that the article was to fair of the currently practices in or existed therein mentioned city about the of Salem. question applicability the article of the
On plaintiffs, admissible as to whether to evidence was advertising in or the described manner others were city the time of and at about Salem about publication. as to an advertisement But evidence apparently paper, a business in a of what was Portland year previously, and a half Portland, located in over remote to be relevant. was too upon
Assignment No. 11 is based of error motion for a directed trial denial defendants’ court’s essentially the same verdict. The issue thus raised points appeal, and the now as on the former various urged by all the court at that time. were considered is not less favorable to now The evidence and the former trial, than it at the former under jury. case for the was one decision Assignments and 14 assert error in fail 12,13 by ing requested give with instructions defendants damages. requests respect The to nominal first two recovery plaintiffs’ limited Would have nominal only; damages an and would the third, alternative, jury damages than that more nominal have told the no people acting allowed “reasonable should unless be guesswork, can derive inference, actually damage did result, thus therefrom derive therefrom substantial data for further can fixing amount.” damage requests, the first evidence of two
As to substantially plaintiffs’ at business was the same plaintiffs’ actual books of account both, trials. In both were introduced, showed a marked decline publication. opinion business after the In the former jury it was held that the could have found that the consequence decline business was a of the libel and (196 29). not a mere coincidence atOr There was no refusing recovery error in damages. limit to nominal request,
As to the given third the instructions by amply subject the trial court covered the of nominal damages in the event that no actual were proved. was told in no uncertain terms that: # * * rights “If question, invaded but the evidence that the of the article in you *10 preponderance cannot determine from a of suffered a loss of plaintiffs business as the result of such of said any plaintiffs your verdict for article, at hands only damages.”
must be nominal refusing request. There was no error in group assignments (Nos. The next of error 20) quali relates to 15,16,17,18,19 the matter of privilege public fied and fair comment on matters of interest. The trial court withdrew the defense based on theory (or theories) that requested and refused in structions that would have submitted such issues. In doing so the trial court followed the law as determined (196 appeal 30-35), on the former atOr and no error was committed.
Assignment complains of error No. 21 of the re- of an instruction fusal that would have submitted to jury complete the issue of truth as a defense. Under preceding group assignments, last defendants argue qualified also removal of the defense of privilege negatived fair comment in effect truth a defense. as ordinarily truth
While is a defense in an (ORS (1) 16.530(2)), action of libel in this case the question when de of truth was taken out of case guilty admitted were fendants not practices In in the article. other described words, abstractly not whether or the article was it is true, applied admitted that the article was true to plaintiffs. simply then issue was whether the applicable plaintiffs, article was to and if it then was, only remaining question defendants were liable and the damages. was that of No error committed in refusing request.
Assignment complains No. 22 of the refusal give to an instruction to the effect that duty diligence” under a use “due minimize their damages, damages and that failure to minimize by jury making should be taken into account an award.
Assuming, duty deciding, without damages applies (as minimize to a libel action cited), requested which no authorities are instruc diligence” tion did not define “due was therefore incomplete. duty Where the to minimize only reasonably prudent it to use the care of a exists, person. Boyd v. Grove, 80, 83, 173 Or P 310. With diligence” out a definition of “due would have been left without a standard which to measure *11 plaintiffs’ conduct. opinion any we are of the that
However, in event there was no evidence that failed to exercise damages. care reasonable to minimize their On day following defendants went to the (1)ORS 16.530 '<#**** “(2) allege may, answer, The defendant his both the truth of charged mitigating defamatory, the matter circumstances, to or damages; justification prove the amount whether he reduce not, give mitigating in evidence may he circumstances.” people,
Capital office and talked to several Journal They including reporter who wrote the article. story requested paper print a retraction or that the apply indicating original did not that article request assert but their was refused. Defendants them, changed plaintiffs should have their method of being advertising avoid classed with those so as to but we do not think that at the article was aimed, whom required the circumstances. under was assignment portions is based on two
The next given, wherein the trial court in of the instructions per article was libelous that the se. structed objection per se is that it could not be libelous The plaintiffs. applied face that it it showed on its unless urged subject twice that mention was It is also repetition. prejudicial adversely ground to de determined
The first 29-30). opinion (196 prior at As fendants Or charge viewing aas we can whole, to the second, repetition. first mention occurred no undue The find explaining proof malice was un of actual while necessary, while ex second mention occurred damage presumed. plaining was that some objects assignment to an instruc- final of error The given an function of “innuendo” defined the tion again attempts argument here action. The a libel opinion asserting effect of the former avoid the per se do not need an which are libelous “Words which need an innuendo are not and words innuendo, per se.” libelous opinion determined that it was
In the former though per extrinsic even evi se, libelous article was application plain required its to show dence was merely 39). present (196 instruction atOr tiffs portion complaint, explanation of a and it an *12 expressly jury told the that the innuendo could not be change language used to extend or used. The trial judge complained “If said: the words of are not in fact no innuendo can make them actionable, so.” Since applicability principal one of was subject an instruction on the issues, innuendo was light erroneous of the former decision. judgment We have found no and the error, affirmed. dissenting.
ROSSMAN, J.,
group
I dissent for the reasons which I
in the follow-
ing
categories:
Although
(1)
three
the instructions to
jury
damage
stated that the measure of
was an
money
justly compensate plaintiffs
“amount of
as will
by
damages,
any,
publication
for
if
done
of the
to their
and to their
article
business,
business alone,”
slight
the record
contains no evidence
amount
yielded
which the
business
had done
profit
probably yield
(2)
would
one in the future.
Although
an
for
this is
action
defamation,
instruc-
quoted
jury
tion above
authorized the
to award dam-
ages
injuries
by
for all
“done
of [plaintiffs’]
article to their
business;” and, therefore,
jury
empowered
something
include
the award
injury
injury
to the
for
whether or not
business,
alleged
plain-
the result of the
defamation example, suppose
nothing
tiffs. For
that whoA,
knew
plaintiffs,
whatever of the
had a radio which needed
repairs
reading
after
who,
the defendants’ article,
apprehensive
thereupon
of all
became
“blind ads” telephone
would
be better not to
concluded
to “Ph.
(the
given
plaintiffs’
number
in the
9098”
advertise-
challenged
ment)
. The
instruction authorized the
subject
as a
to deem
redress,
award of dam-
ages,
prospective
instance in which a
customer
telephoning
(a)
refrained
to “Ph. 9098”
whether
plaintiffs’
or not he was aware of the
existence,
*13
(b)
plaintiffs
him.
or not the
were defamed to
whether
my dissenting opinion
(3)
The
stated in
reasons
Putnam,
Marr v.
et
First, in the course of the trial in the defendants, circuit repeatedly objected court, the evidence did not show had a business which could damages. example, afford a basis for the award of For at the close of the instructions, defendants chal- lenged, by proper exceptions, quoted the instruction part preceding paragraph. part in a The material following: that instruction was the “* * * you I instruct that as a matter of law * * * you plaintiffs any shall not award to any alleged injuries amount for sons or per- done to their * * * reputations, but to such amount money justly compensate plaintiffs as will damages, any, if done article to their alone.” business, to their business exception following: The defendants’ was the except giving by “Defendants to the the Court *14 jury defining general to the of the instruction dam- ages ground on the and for the reason that under respectfully urge, the evidence this we case, there any general damages was no basis for exceeding a * * nominal amount, quoted The which instruction, was based a hypothesis plaintiffs that the business was that of the partners, holding was the result of the in Marr v. Putnam, et 196 Or al., 1, 246 P2d 524, that the action by which the had filed was instituted them partnership capacities. as a and not in their individual By reverting to that it will be decision, noticed that ruling assignments made after the defendants’ of had overruled. error been Thus, there can be no room sufficiency as to the (ap- for cavil of the defendants’ exceptions. pellants’) expressly
Since instruction admonished the “you jury shall not award any the any alleged injuries for persons amount done to their al- the verdict reputations,” must believe we injury either nothing partnership for lowed to the plaintiff individually. have seen, as we instruction, The recovery injury and to their business, “to limited that when cannot infer alone.” their business We injury judge spoke had in mind he those words trial anything happened by partnership virtue to the partner- property any tangible which item of nothing complaint ship possessed. mentioned First, plaintiffs, with in connection of that kind. Next, only employed in it business, their the conduct of following: space attic (1) size, 12 feet in a they plaintiff used which Marr, John the home of parts repair shop; (2) and a few radio tools as their thought pos- belonging were worth he John, age coupe sibly (3) of an undisclosed Ford a $350; plaintiff Marr used in Eobert which the and value delivering up radio sets of those who picking “Ph. 9098.” None of responded advertisement, to the acquired launch this little in order to those items plaintiffs did not claim that venture. business given had no had name, to which business, their good any good a let alone will of will, for itself won monetary name was chosen for it no fact, In value. according filed, certificate was and no assumed-name had ceased the venture function- after until Eobert, contemplation plaintiffs had in the insti- ing and the certain that Hence, action. this tution under belief that $4,000 allow did space, parts, (attic auto- tools, items above *15 by adversely affected the defendants’ mobile) were publication. allowed must were have been which
The plaintiffs profita- had a that the a belief under awarded published their the defendants article when business ble profits capacity to earn continue that its copy following, being photographic destroyed. a The partnership bookkeeping records all of of business was trans- volume which shows the entire day partnership that the from the business acted began, operations until it ceased 1946, November days January 11,1947. later, every bookkeeping account for The entries above plaintiffs received from their business cent which the every repair identifies item of business venture. 'It they in number —and for handled —17 which which they paid a total The latter was the $187.12. yet gross the little when had amount; venture, yielded only quit, folded its tents and there $187.12, judgment against emerged Phoenix-like, it, for $4,000. defendants above entries include these three:
“Net Profit Nov. $42.12” Dec. “Net Profit $44.11” ’47 “Net Profit Jan. $12.45” days in the 51 in which Thus, The three total $98.68. operation brought it to the the venture was provided profit the above in truth $98.68; a net profits. Assuming represents net the sum of profit, a net the business fact, earned was, $98.68 day. per awarded $4,000, Since must $1.93 would continue assumed business have day per days, for a total of 2,072 or for earn $1.93 years. justifiable approximately No six inference can expanded would that the have entertained be plan doing, had no for so business, their desiring nothing expressed than themselves more repair They amount work. had limited” “a small *16 other and wanted to no sources of income do more than it. supplement
It will noticed be the entries the plaintiffs’ books as allowed reproduced above such nothing items as rent, use tools automobile. light, heat, this case must be determined Obviously, *17 of law that all other tort in principles govern cases which are damages of lost sought upon charges profits. before a could Accordingly, juror determine whether or not the had earned a in profit the 51 days the radio they some deduc- repair business, tions must be made from income gross on account of items mentioned. expense just The record dis- closes the amount nothing concerning of any one of them. to the two Again, reverting sheets of book- it will items, be noticed that keeping nothing deducted as the cost of the advertisements which the had inserted in the Capital Journal.
When the plaintiffs instituted this action of they, assumed burden of course, presenting evidence had a business which was showing earning a net Let us now turn to the authorities. profit. Blakiston v. Osgood is taken from following Panel & Veneer Co., 173 P2d 435, Wash 23 397: are committed to the principle
“We
before
one can claim and recover
future
for the
profits
to a
it
injury
loss
must be shown that
business,
the business was established and
and not a
going
mere
or new adventure.
Schultz v.
experiment,
Butchers’
151
Supply Co.,
328,
Wells
Wash.
275
further,
P. 737.
for loss of
And,
damages
aof
while recoverable
anticipated profits
business,
a
must be shown with
reasonable
any proper case,
Pearce
Id.;
v.
Sound
accuracy.
Puget
degree
170 Wash.
Catarau v. D’Evers 63 Co., 592, Sunde & 188 Wash. P2d 365, ruled: profits “In order recover for loss appear has to a it must that the business business, period operation
been successful for such recognition. give permanence time as P. 51 444, 1013, Webster v. L.R.A.(N.S.) Wash. Wash. 137 Beau, 77 Andreopulos 95 Peresteredes, v. 81; Schultz v. Butchers’ 282, 770; 163 P. Wells Cap Supply P. Lockit 737; 151 Co., 382, Wash. 275 Manufacturing 290 Co., 183, Co. v. Globe 158 Wash. Osgood Co., Veneer 813; P. Blakiston v. Panel & P.(2d) Automatic 435, 397; 173 Wash. 23 Canteen Washington Co. of v. Automatic Canteen Co. P.(2d) 17 41; 797, 182 Wash. C.J. America, § 118. nothing substantial “There was contemplated court submit the issue of the could properly therefore,
investment. That issue was, jury.” withdrawn employed decisions is The rule stated in those generally example, by the For Libel CJS, courts. *18 p § and Slander, 242, 365: “Following general held rule, it has been the of to the business measure
that correct diminution busi- the net income from the is the of ness.” way principle in Am in this Jur, is stated
The same Damages, p § 571: general may that in tort as a rule “It be stated may profits, recovery had for loss be actions a proximate provided result their loss is wrong with can be shown defendant’s certainty. profits in recoverable reasonable distinguished probable, limited to cases are such profits.” possible, that is unneces- in this state familiar rule is so
That sary fortify to onr with citation its statement decisions. given notwithstanding au- rule
Yet, quoted, just the fact that I thorities from which a for belief basis the evidence fails to establish probably plaintiffs which would that the had a business days judgment profit a come, a in the return for them $4,000. in the sum of was entered in their favor a owners of in which the This is not an instance wrong- attempting purported a are hold business unjustifiable alleged interference doer liable an [such a of advertis- as method with business device brought ing] past its in business which had years ever-expanding number In recent an customers. principles developed of law of decisions have govern that another, in which it is claimed cases through wrongful with the has interfered busi- action, Many of those cases are ness’ access to its customers. analyzed Harper The Law James, cited and That from the de- ch treatise deduces Torts, 6. study principles governing of law. A cisions chapter in most instances the cases indicates governed by law of defamation. If we were which the advertisements view the blind newspapers published as a two business Salem satisfactory yield them a intended to which was device readily be seen that the it will customers, number of decline after business, in their readily merely challenged could have occurred article, apprehensive people of blind had become because go presently into that matter, will I advertisements. present upon the conclusion before rest for the but any recovery entitled to this present them to evidence incumbent it was action *19 profitable. showing which was had a business 40
Since no evidence of that character is in the record, are not entitled to receive from the any defendants $4,000 other sum. I am satisfied majority disregarded that the has reversible error. proceed I ground now to the second for this dissent. principle frequently of law which underlies it is employed by Spain Oregon-Washington the courts. v.
R. & N. Co., 78 Or P 355, 153 ruled: 470, “When the evidence leaves the case in a such required speculate situation that the will be guess which of several causes occasioned the
injury,
part
of the case should be withdrawn
from their consideration.”
quoted
governed
Those words were
in and
v.
Coston
Portland Trust
131
Co.,
Or
P
71,
586,
278
In Ash v. Childs Hall Co., 231 Mass 86, NE 4 ALR 396, which has almost a land 1556, become Eugg mark in the law Mr. Chief Justice said: torts, nothing “There is the record from which plaintiff can be inferred that the harm to the re- directly duty part sulted failure of on the injury precise of the defendant. The cause of her may reasonably conjecture. left at- It be liability tributed for which no at- condition taches to the defendant as to one for which it is responsible. plain- circumstances, Under such fastening tiff does not sustain the burden of tortious preponderance a fair conduct on the defendant ought evidence, and a verdict to be di- of all the accordingly.” rected way: p states the rule in this Torts, Prosser on as on causation, issue of the fact of “On the plaintiff to his has case, issues essential other *20 41 proof. the burden of He must introduce evidence which affords a basis for the conclusion reasonable likely that the that of it is more than not the conduct factor in the result. defendant was substantial enough; possibility causation is A mere of such pure specula- the one of when matter remains conjecture, probabilities tion or or the are at best duty evenly of the court it becomes the balanced, direct a for the defendant.” verdict Negligence, page says: Am at Section 285 of 38 Jur, 976, showing negligence charged “In the enough proximate injury, the cause of the it is not plaintiff prove might negligence for the perhaps that the injury. example, have caused the for If, injury complained might the well have resulted many upon from one of plaintiff causes, is incumbent the produce evidence which will exclude operation of those causes for which defendant legal obligation. If under no the cause may injury plaintiff reasonably to the be as at- tributed to an act for which the defendant is not plaintiff for he is liable, liable as to one which fastening the burden of has not sustained tortious upon conduct the defendant.” applied, court has in cases of This the rule libel, plaintiff injury damages if for which the seeks may resulted from some cause other than have plaintiff purported cannot defamation, recover that the latter, shows rather than unless evidence competing probable. the more causes, was the other Publishing Co., v. Journal 166 650, DeLashmitt Or 114 and Mannix v. 1175, ALR Portland Tele P2d 1018, 135 gram, P2d 138. 23 Or jury, quoted preceding in a to the instruction jury
paragraph, to include in its authorized award money justly compensate plain- as will “such amount by damages, any, if done for tiffs [plaintiffs’] the article to their business.” Note must be taken of the fact that the instruction did not restrict compensation injury may have plaintiffs. resulted from the defamation of the Ac- cordingly, although as I have stated the action before, at bar is based averments the business was destroyed plaintiffs, because the article defamed the just quoted the instruction authorized the assessment against of all defendants “done publication of the article to their business.”
I will now take note of an additional fact which *21 alleged so far not been mentioned. has Before the defamatory published, article was the advertisement quoted majority opinion only in had the been run, upon page the classified advertisement of both of daily newspapers, upon page Salem’s but also another appeared a of each where it in column which inter- spersed local news with brief such as advertisements, plaintiffs’. Plaintiff John Marr the testified: you advertising during did do other
“Q Now along prior period to the 4th that of December? Capital “A had another ad in the Journal We in the locals column.” Statesman gave testimony, who similar ex- Robert, brother His plained of discontinuance the advertisement in way: in this column the locals stay didn’t there was because reason we “The expensive.” more it was page plaintiffs’ Upon advertisement the classified page appeared a and a in half column, advertisement length, Miscellaneous.” “Por entitled Sale following Any three or all of circumstances plaintiffs’ may for the decline accounted have (1) of the advertisement from withdrawal business: knowledge part (2) on the of the local news column; plaintiffs of the article that the some readers repairmen who identified themselves as radio part ensuing “Ph. an their 9098” and belief they with the result that were dishonest, patronage (3) them; withheld their radio owners knowledge plaintiffs, (a) of the who had no whatever identity (b) of the advertiser who did not know (c) identified himself as “Ph. did not know 9098”, not the article was but who true, whether or felt not to answer blind it was better advertisements. to show that the second
The evidence fails of the likely to above reasons was more have been the cause plaintiffs’ decline in the than business either question, both of the other two. That however, conjecture left the evidence the realm guesswork. The fact that the did not take it out of that realm alone should suffice to warrant a holding discharge failed the burden of may conjecture, proof. if resort to we the second But, plain- above-listed reasons for the decline in the appears likely been the tiffs’ business have least Surely repetition the three. advertisement expensive greater locals column had a in more draw- *22 lengthy ing power in the column of than the classified page entitled “For Sale advertisements Miscellaneous.” saying another reason There is still the possible causes for the above-listed the de- second of likely. plaintiffs’ was the business least cline in the published December and 4, 1946, was more The article passed day. years have since that In the than eleven although cause has been tried twice in interval, single not a witness testified that he court, circuit plaintiffs thought on account of of either ill them knew indicated that his No one who article. 4á
friendship plaintiffs for or confidence in the had been any way by impaired the article. no one Likewise, indicated, he withheld his business from them plaintiffs’ because the article. Some witnesses expressed concern for them on account of fears that drawing power of the advertisement would be im- paired. anyone That and anot belief that fear, would plaintiffs person, deem either of the a dishonest was object of concern of their friends. In fact, plaintiffs themselves entertained the same concern over enterprise their infant after had read the de- following fendants’ we article, as see from the account given plaintiff Marr Robert of the call which he reporter his brother made the Journal who wrote the he swore: article; reporter] [the told him
“We we were afraid damaged that it aimed at our ad and our ad, and consequently getting would hurt the results we were and asked him ad, what could be done to identify us.” immediately we after that,
Thus observe the article appeared, apprehension which ex- perienced at was that the article was “aimed our ad thought damaged any- our ad.” No voiced that deem read the article would dis- one who years leaving couple after Willamette honest. A plaintiff, University, Marr, John established Marr under the name of a business Salem repair engaged and sale of radio and television in the at the outset he located stated that the busi- He sets. of a commercial basement but structure, in the ness expanding of business soon volume enabled that an ground Seemingly, floor. to the the next move hi-m incorporate step his business so he took was appears doing for it the name of Marr. It retained he *23 testimony long again, from his that before he moved nearby superior this to a time structure. He also testi- part fied that another located in a concern, different purchased capital of Salem, has some of the stock (cid:127)which and that issued, he the service cars of the two enterprises upon carry their sides both names. Ac- cordingly, repeat, I the second of the three above-listed possible plaintiffs’ causes of the decline of volume likely qualify seems the least of business the three to proximate cause. designation
The business which was done under the of “Ph. to an 9098,” true, is came but that end, was anyone thought because who knew ill of them and withheld his business. One who is responsible for a libel which an identifies individual may properly be held liable under the rule of “libel per though person may even se,” defamed be unable anyone thought to call witness stand who ill of part him. The reason for the rule consists in in the years may fact later, someone that, encounter the writ- ing damage Nothing and that then the will be done. possible part- is kind this instance because the nership sought has been ended injured, quit which it claimed business, is operations years ago. Again, say the article did not repairmen that all who used blind advertisements were dishonest. drawing power of the business device depended patron- win
which the for them age, unique their little is, advertisement, suc- possibly cumbed because type analyzed this not an action of the but
article; supra. Harper ch In James, cases of that unjustifiable purpose, form kind in the must malice, present judge In the trial instance, be established. no of malice was a matter of law that evidence ruled as *24 presented. if we at- will ensue Confusion in the law tempt jam of an action for into the form this case plaintiffs were clear that the It must be defamation. defamation must feels that if someone defamed; not or, wrong presumed, rule for clear that the then it is be jury. given to the the measurement proof discharge the burden of did they this action. instituted undertook when lost to They their business was not shown have for a directed through The motion defamation. them Error was com- sustained. been should have verdict denied. it was when mitted above reasons. for the I dissent