Marr v. Putnam

• Decision Date: 25 June 1952
• Citation: 196 Or. 1,246 P.2d 509
• Parties: MARR et al. v. PUTNAM et al.
• Court: Oregon Supreme Court

Page 509

246 P.2d 509

196 Or. 1

MARR et al. v.PUTNAM et al.

Supreme Court of Oregon.

Argued and Submitted Jan. 10, 1952.

Reargued April 22, 1952.

Decided June 25, 1952.

Norman K. Winslow, Salem, argued the cause for appellants.With him on the briefs was W. C. Winslow, Salem.

Wallace P. Carson and Ralph E. Moody, Salem, argued the cause for respondents.With them on the brief were Moody & Lamkin, Allan G. Carson, and Douglas L. Hay, Salem.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and WARNER, Justices.

LUSK, Justice.

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 the 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.Robert, 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 Robert would deliver the radios to the owners.It was also Robert'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:

'Slickers Work Radio Racket

'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 Ray Moore, 3720 Portland Road, 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 articleheplaintiffs 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 some one 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 talked 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...