CLARK, District Judge.
Plaintiff brought this action to recover damages for an alleged libel.
The complaint alleges in part:
"Plaintiff is now and has been at all the times hereinafter mentioned a citizen and resident of the State of Washington, where he is Postmaster at Oakesdale, Whitman County, Washington; and plaintiff, and each and all of the defendants are citizens and residents of different states, and the amount involved in this action exceeds $3,000.00 exclusive of interest and costs.
"Defendant Fulton Cook and Mrs. Fulton Cook, whose true Christian name is to plaintiff unknown, are now and have been at all the times hereinafter mentioned husband and wife, constituting a marital community under the laws of the State of Idaho; that said defendants are now and have been at all the times hereinafter mentioned residents of St. Maries, Benewah County, State of Idaho, and were engaged in business in said county operating among other businesses, a motion picture theater known as the Bungalo Theater of St. Maries, Idaho. That all of the acts and conduct hereinafter described and alleged were done by the defendant Fulton Cook while engaged in the business affairs of the community and were for the use and benefit of said community.
"Defendants A. M. Quane and Mrs. A. M. Quane whose true Christian name is to plaintiff unknown, are now and have been at all the times hereinafter mentioned husband and wife, constituting a marital community under the laws of the State of Idaho, and are residents of St. Maries, Benewah County, State of Idaho. That said defendants are now and have been at all the times hereinafter mentioned engaged in the business of publishing a weekly newspaper under the name and style of St. Maries Gazette-Record, which is a newspaper of general circulation throughout said Benewah County and northern Idaho and in Counties in Eastern Washington adjacent to Northern Idaho, including Whitman County, Washington.
"That in the month of May 1943, and for some time prior thereto plaintiff in his spare time had engaged in casual employment for a concern called the Ross Federal Service Inc., which was engaged upon a national scale in checking attendance at motion picture theaters for substantially all of the film manufacturing companies of the United States. In connection with said casual employment plaintiff from time to time made trips to various towns and cities located in Eastern Washington and Northern Idaho where he checked attendance at various motion picture theaters designated by his employer.
"On or about May 13, 1943, the plaintiff received instructions from his employer to check the Bungalo Theater in St. Maries Idaho, on May 16, 17 and 18th following; That plaintiff was not informed by his employer of the purpose of the check, and thereafter on May 16th checked the attendance at said theater from approximately 6:30 P M until 9:30 P M when he returned to his home. That again on May 17th and 18th the plaintiff checked the attendance at said theater during the same hours. That said check of attendance consisted solely of counting the number of patrons purchasing admission tickets to said theater on a tallying clock.
"As plaintiff was preparing to leave St. Maries, Idaho, on May 18, 1943, after completing said check, plaintiff was accosted by two men, whom plaintiff believes to be police officers, who questioned him concerning his business in St. Maries, and after said questioning, advised him to leave and not return. That plaintiff believes and therefore alleges that said police officers were directed by the defendant Cook to thus accost him and order him to leave town. That the defendants A. M. Quane and wife published in the May 20, 1943 issue of said St. Maries Gazette-Record a libelous attack entitled `A New Deal Stoolpigeon', which article was signed `Bungalo Theater, Fulton Cook.' That said libelous article is attached hereto, marked Exhibit `A' and by this reference made a part hereof as fully as though set forth herein. That thereafter said newspaper was distributed to all of the regular subscribers and copies of editor's issue were sent by mail to the Mayor and, as plaintiff believes, to members of the City Council of Oakesdale, where plaintiff resides."
The article complained of is as follows:
"A New Deal Stoolpigeon"
"On Monday evening the cashier of the Bungalo Theater was informed, by one of our local business men, that someone was keeping watch on the theater and had done so two nights in succession. He had stationed himself in the Pastime Beer Hall across the street from the theater and had stood in the window more than two hours each night Sunday and Monday. The informer stated that he did not know what the intentions were of this Picket, but he was sure he was keeping his eye on the theater and, apparently counting all those who were going into the theater.
"The management informed the Chief of Police and on Tuesday evening the Chief of Police, Mr. Gaskill and his assistant Mr. Beaton, caught up with this Peeping Tom and placed him in custody. Upon Examination he stated that he was employed by one of the large film companies to make a report on the theater. He gave his name as Ralph V. Browder, Postmaster of Oakesdale, Washington. He did not give the name of the film company he was stoolpigeoning for. He had been here Sunday, Monday and Tuesday night and admitted that he was doing this work in other parts of the country, as well as St. Maries.
"Now the good people of Oakesdale, Washington must be proud to have their honored Postmaster, who is drawing his check from the taxpayers to be Postmaster of their fair city, to be engaged as a stoolpigeon to picket and obtain information about a privately owned business in a neighboring town, in another state, which he will furnish to some monopolistic film Company, whose desire is to control all theaters and make the patron pay more admission charges, so they can take out of the town a little more money.
"We wonder what the Postal Department would think of one of their prize New Deal appointees to the Postmastership of Oakesdale, being a Jekyll and Hyde, whereas he is a postmaster in Oakesdale and a stoolpigeon in St. Maries. It would hardly seem that the Postal Department would carry such a man on the public payroll and have him in the position in Oakesdale, Washington. We do not believe that the public as a whole would feel inclined to favor an appointment of a character of this kind to the position of Postmaster in any town.
"We did not know that we had reached the stage where New Deal Gestapo is spying on their neighbors, like they are doing in Germany. If this is the case, how long will it be before such stoolpigeons will be spying on homes and turning in the information to those desiring such. Yours very truly, Bungalo Theater, Fulton Cook."
Plaintiff alleges that this article contained the following statements, which statements and each of them are untrue, libelous and defamatory: "The Chief of Police * * * caught up with this Peeping Tom and placed him in custody." "He did not give the name of the film Company he was stoolpigeoning for." "The good people of Oakesdale, Washington, must be proud to have their honored postmaster * * * to be engaged as a stoolpigeon." "We wonder what the Postal Department would think of one of their prize New Deal Appointees * * * being a Jekyll and Hyde * * * Postmaster in Oakesdale * * * Stoolpigeon in St. Maries." "The Postal Department would carry such a man on the public payroll." "That the public as a whole would feel inclined to favor an appointment of a character of this kind to the position of Postmaster in any town." "New Deal Gestapo is spying on their neighbors, like they are doing in Germany." "How long will it be before such stoolpigeons will be spying on homes."
"That said publication by virtue of its wide circulation and by reason of the further fact that copies thereof were sent to prominent residents of Oakesdale, Washington, who were not regular subscribers thereto, has excited wide-spread prejudice against the plaintiff and that said article and publications were maliciously and deliberately calculated to excite prejudice and with intent to injure him in his business and occupation and to ruin his good name and reputation for honesty, integrity and virtue and thereby expose him to public hatred, contempt and ridicule and cause his dismissal from the postal service; that said false, libelous and defamatory statements were all made with an utter disregard for the truth and verity and for the sole purpose of injuring plaintiff in his good name and in his occupation, and by reason of the acts and things hereinbefore set forth plaintiff has been damaged in his good name and reputation in the sum of Twenty-five Thousand ($25,000) dollars."
Motions have been submitted as follows: First, by defendants A. M. Quane and Mrs. A. M. Quane moving the court to dismiss the above entitled action because the complaint fails to state a claim against said defendants or any of said defendants upon which relief can be granted. Second, defendant Fulton Cook moves the Court for an order dismissing the complaint on the following grounds: "First, the said complaint does not state facts sufficient to constitute a cause of action against this defendant and fails to state a claim against defendant upon which relief can be granted. Second; that there is a defect of parties defendant. Third; plaintiff's alleged cause of action fails to state facts from which it can be determined wherein or whereby he suffers damages in the amount claimed or in any amount whatsoever." Third, defendant Mrs....
