concurring and dissenting:
While I fully agree with my Brothers Duniway and Wallace as to the errors requiring reversal and remand of this case, I would go further and reverse and direct the district court to enter in favor of Summa a judgment notwithstanding the verdict. In this respect only do I dissent.
Two primary goals of the court — justice and judicial economy — would be advanced by that disposition. In order to avoid wasteful and unnecessary retrials and to encourage speed in litigation the Supreme Court has held that
Rule 50(d) is permissive in the nature of its direction to the court of appeals . . , there is nothing in Rule 50(d) indicating that the court of appeals may not direct entry of judgment n. o. v. in appropriate cases.
Neely v. Eby Construction Co., 386 U.S. 317, 324, 87 S.Ct. 1072, 1077, 18 L.Ed.2d 75 (1967). But cf. Iacurci v. Lummus Co., 387 U.S. 86, 88, 83 S.Ct. 1423, 18 L.Ed.2d 581 (1967).
The test to determine the propriety of judgment n. o. v. is the same for district and appellate judges. See Alioto v. Cowles Communications, Inc., 519 F.2d 777, 780 (9th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 259 (1975). It requires the court to examine the evidence, drawing all permissible inferences and resolving all questions of credibility in favor of the party securing the jury verdict. Thereafter, the court must determine that only one interpretation of the evidence is reasonably supportable as a matter of law. Cockrum v. Whitney, 479 F.2d 84, 85 (9th Cir. 1973); Juhnke v. EIG Corp., 444 F.2d 1323, 1325 (9th Cir. 1971). This does not permit weighing evidence as in jury deliberations, but rather determining only whether there was sufficient evidence to support the jury’s verdict. Wong v. Swier, 267 F.2d 749, 752 (9th Cir. 1959).
Summa defended against this defamation action by claiming that Hughes’ statement represented the truth: that Maheu had stolen money from the company. To escape liability for defamation under the California law applicable in this diversity action, Summa did not have to prove the literal truth of the statement. As the majority opinion acknowledges, all Summa needed to prove was that “the imputation [was] substantially true so as to justify the ‘gist’ or ‘sting’ of the remark.” Emde v. San Joaquin County Central Labor Council, 23 Cal.2d 146, 160, 143 P.2d 20, 28 (1943); Jef-fers v. Screen Extras Guild, Inc., 162 Cal. App.2d 717, 728, 328 P.2d 1030, 1037 (1958), disapproved on other grounds, MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 551, 343 P.2d 36, 45 (1959). No action will lie if the defense demonstrates that the defamatory statement was substantially true. Jef-fers, 162 Cal.App.2d at 732, 328 P.2d at 1040. Slight inaccuracies of expression are immaterial when a statement is true in substance. Restatement (Second) of Torts, § 581A, comment f at 237 (1977).
Consequently, using the California standard for truth of a defamatory statement, this court must find that only one legitimate inference may be drawn from the evidence. Here, Hughes publicly stated that Maheu had stolen money from him, and it is clear that Summa did prove that the gist or sting of that statement was true.
While several instances of unusual financial dealings between Hughes and Maheu were explored in detail during the lengthy trial, Summa needed only to prove one instance in which it was substantially true that Maheu stole money from Hughes. The Tucson lease affair suffices.
Each month for nearly six years Hughes sent Maheu an exact amount of money with which he was to pay the monthly lease rent due to the Tucson Airport Authority on behalf of Hughes Tool Co. But, Maheu failed to make these payments, and when the lease was terminated the rent was nine months in arrears. Maheu had taken over $74,000 and, by his own admission, had used the money to meet personal obligations. *482He explained these damaging circumstances by describing his very informal relationship with Hughes and his belief that his agreement and responsibility were only to pay the rents at some undetermined time. He professes to believe this despite the exact amount due being sent to him on a monthly basis over a long period of time. The explanation offered is too improbable to be believed by any reasonable jury. Regardless of the extraordinary manner in which Hughes conducted his business affairs, this can only reasonably be viewed as diversion or misappropriation — stealing.
Under these circumstances I would order judgment n. o. v.