Marr v. Putnam

• Citation: 213 Or. 17,321 P.2d 1061
• Parties: John E. MARR and Robert B. Marr, Respondents, v. George PUTNAM, doing business as Capital Journal Printing Co., and Ray Moore, Appellants.
• Decision Date: 26 February 1958
• Court: Supreme Court of Oregon

Page 1061

321 P.2d 1061

213 Or. 17

John E. MARR and Robert B. Marr, Respondents, v. George PUTNAM, doing business as Capital Journal Printing

Co., and Ray Moore, Appellants.

Supreme Court of Oregon.

Argued and Submitted April 4, 1957.

Decided Feb. 26, 1958.

Wallace P. Carson, Salem, argued the cause for appellants. With him on the briefs were Moody & Lamkin, and Allan G. Carson, Salem.

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

Before PERRY, C. J., and ROSSMAN, LUSK, BRAND, McALLISTER and KESTER, JJ.

KESTER, Justice.

This is an appeal by defendants from a judgment for plaintiffs in an action of libel.

The case was previously in this court after a nonsuit had been granted. In Marr v. Putnam, 196 Or. 1, 246 P.2d 509, the judgment of nonsuit was reversed and the cause was remanded for a new trial. The case was tried again on the same pleadings, and plaintiffs' evidence on the second trial was substantially the same as on the first trial. The jury returned a verdict for plaintiffs in the amount of $4,000, upon which the judgment was entered from which this appeal is taken.

In view of the full discussion in the prior opinion, our statement of facts will be brief. Plaintiffs, John E. Marr and Robert B. Marr, who were brothers, were engaged in a small radio repair business in the city of Salem, as a side line while they were students at Willamette University. Their workshop was in the attic of John's house, and John did the repair work while Robert attended to the business end. Business was solicited primarily by newspaper advertising, and from the latter part of November continuously until the end of December, 1946, they inserted in the two Salem daily newspapers, the Capital Journal and the Oregon Statesman, the following advertisement:

'Guaranteed Radio Service, Free pick-up and delivery. Ph. 9098.'

The phone number was that of a service station, the operator of which had agreed to accept calls for them; and their practice was that upon receipt of telephoned orders Robert picked up the radio sets and took them to John's house to be repaired, after which Robert redelivered the sets to the owners. On December 4, 1956, defendant Putnam (who was owner and publisher of the Capital Journal), acting on information supplied by defendant Moore (who operated a full-time radio repair business in Salem), published in the Capital Journal the following article:

'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 practise [sic] 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,' 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 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.'

It is admitted that plaintiffs were not guilty of the practices referred to in the newspaper story; but defendants contend that the article was abstractly true, and that it was not intended, and could not reasonably have been understood, to refer to plaintiffs. Plaintiffs alleged and offered evidence, however, that at the time of publication of the article, and for some time prior thereto, they were the only persons in Salem conducting a radio repair business who advertised in that manner; and they offered evidence that some readers of the paper thought the article referred to them. After publication of the article, plaintiffs received only one more call by means of their advertisement.

Upon the second trial the court, applying the law as determined on the former appeal, limited the issues submitted to the jury to: (1) whether the newspaper article was applicable to plaintiffs; and (2) if so, whether the publication caused actual damage to plaintiffs' business, and if so, in what amount. The jury was told that the article was libelous per se, and that if it was directed to plaintiffs they were entitled to as least nominal damages. The matter of compensatory damages was expressly limited to plaintiffs' business, as distinguished from personal damages, and the claim for punitive damages was withdrawn by the court.

Appellants submit twenty-four assignments of error, most of which present questions that were determined adversely to defendants on the former appeal. Under the well-settled doctrine of 'the law of the case,' the former decision must be deemed to be controlling, so far as the questions are the same. Public Market Co. of Portland v. City of Portland, 179 Or. 367, 373, 170 P.2d 586, certiorari denied 330 U.S. 829, 67 S.Ct. 861, 91 L.Ed. 1278; Portland Trust & Savings Bank v. Lincoln Realty Co., 187 Or. 443, 451, 211 P.2d 736; Finn v. Spokane Portland & Seattle Ry., 194 Or. 288, 292, 241 P.2d 876.

Defendants frankly ask that the former decision be reconsidered and overruled. However, that decision was the result of careful deliberation--the case was argued once and then reargued, the two dissenting opinions necessitated further consideration, and after the opinion was announced a petition for rehearing was considered and denied. While we agree with appellants that a court should not blindly adhere to a former decision that is manifestly erroneous, stability of the law requires that there be very cogent reasons for abandoning a former decision, particularly when it was between the same parties and on the same pleadings.

A number of defendants' assignments of error (Nos. 5, 6, 7, 8 and 9) relate to the admission in evidence of testimony by various witnesses who knew the plaintiffs and their business, who had read the newspaper article at about the time it was published, and who, upon reading it, thought it applied to plaintiffs. Defendants' argument here is twofold: First, that the article was not ambiguous, and therefore that testimony was not admissible in any event to show its applicability to plaintiffs; and Second, that these witnesses were not shown to be specially qualified to draw an inference of its applicability to plaintiffs.

The arguments are foreclosed by the prior opinion. In that appeal, as here, defendants contended that the article was inapplicable to plaintiffs as a matter of law; but it was held that the question of applicability was one of fact, and for the jury. On the issue of whether the published article could reasonably have been interpreted as applying to plaintiffs, evidence was admissible that persons familiar with plaintiffs and their business did so construe it. The same evidence was offered on the former trial as is referred to in these assignments, and the same objections were made, but this court deemed the evidence competent and relevant and gave it weight in passing upon the propriety of the nonsuit. No special qualification was necessary, other than the witnesses' familiarity with plaintiffs and their method of operation. Odgers on Libel and Slander 6th ed., pp. 126, 559.

It is true that in State v. Mason, 26 Or. 273, 275, 38 P. 130, 26 L.R.A. 779, the admissibility of such evidence was predicated upon the fact that the article was ambiguous. But the ambiguity in that case existed merely in the fact that the news story did not expressly name the person who was the subject of the article, and proof was therefore admissible to show the person to whom the article referred. The same situation exists in this case.

Another group of assignments of error (Nos. 1, 2, 3, and 4) raises a similar question, but once removed. Evidence was admitted as to the statements of third persons with respect to the applicability to plaintiffs of the published article. In each instance a witness was permitted to testify as to a conversation with another person, out of court, and not in the presence of either of the defendants, wherein the other person's comments indicated that he interpreted the article as referring to plaintiffs. While a number of grounds of objection were stated in the lower court, the argument here is limited to the objection that the statements were hearsay.

The exclusionary force of the hearsay rule is not applicable when the extra-judicial statement of a third person is not offered to prove the truth of the utterance, but only to show that the statement was made. Where the mere fact that the statement was made is independently relevant, regardless of its truth or falsity (as, for example, to show the state of mind of the declarant, where that fact is in issue), such evidence is admissible. Wigmore on Evidence, 3d Ed., § 1789; 20 Am.Jur. 404, Evidence, § 457; 31 C.J.S. Evidence § 239, p. 988; see Wayne v. Huber, 134 Or. 464, 503, 291 P. 356, 294 P. 590, 79 A.L.R. 1427.

The present evidence falls within the latter category. The fact that third persons thought the article referred to plaintiffs was in the nature of an ultimate fact, which was material to plaintiffs' cause of action. The statements of those persons, although out of court, were relevant circumstances tending to prove their contemporaneous interpretation of the article. Thus in one of the instances plaintiff Robert Marr testified that as he...