dissenting.
It is incomprehensible to me that a newspaper, which, in an effort to serve the public, publishes a warning which carefully avoids describing anyone, can be held liable to suit for libel for having made the publication. In this case, the sums sought are $10,000 compensatory and $10,000 punitive damages. The prevailing opinion recognizes a liability, even though some of the persons upon whom the plaintiffs relied deemed the purported application of the article to the plaintiffs as a joke, and others, whose testimony is said to *41support the action, merely feared that the plaintiffs’ advertising would no longer draw business for them through popular distrust of blind advertising; that is, advertising which gave no clue whatever to the identity of the advertiser. Obviously, the plaintiffs were not defamed in the minds of people who were ignorant of their existence and who, after reading the article, refrained from telephoning to “Ph. 9098”. If one, however honest he may be, adopts a method of advertising which is similar to that employed by unscrupulous individuals, surely he is not defamed if a newspaper, without mentioning him, gives warning against the unscrupulous.
I said that the publication described none of those against whom it gave warning. Following is the 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 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 it was not there.’
*42“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.”
Plainly, the publication of the article caused the prudent to refrain from answering advertisements such as the plaintiffs’ which gave neither the name nor the address of the advertiser; but that fact does not indicate that the plaintiffs were defamed. A person who, after reading the article, declined to answer blind advertisements may have thought neither good nor bad about the advertiser. The article merely caused him to wait until he gained information about the advertiser.
Prom the foregoing it is apparent that because the defendants published a timely warning, which neither described nor mentioned anyone, the majority recognizes liability in them to the plaintiffs. The latter, the majority hold, proved that they were defamed by presenting evidence that (1) some friends feared that strangers to the plaintiffs might apply the article to them; (2) friends were apprehensive lest the article would cause people to abstain from answering blind advertisements and thus destroy the drawing power of such advertising; and (3) after the appearance of the article, the plaintiffs’ advertisement yielded no results.
Obviously, the plaintiffs were not defamed in the estimation of strangers who were ignorant of their existence and who, after reading the article, thought it best not to respond to blind advertisements. The majority seem to believe that evidence showing that people who read the article and declined thereafter to telephone to “Ph. 9098” proves that the plaintiffs *43were defamed. Those persons may have had no knowledge whatever of the plaintiffs. “Ph. 9098” was not the telephone number of either plaintiff. The article possibly left no impression in the minds of its readers except one which suggested that they be cautious. Suppose that I had a disabled radio set and, after reading the article and the plaintiffs’ blind advertisement, took my instrument to a repairman whose advertising included his name, would my withholding of patronage from “Ph. .9098” prove that the advertiser, whoever he might be, had been defamed? The idea is preposterous.
I said that some of the plaintiffs’ witnesses referred in terms of jest to the article’s purported application to the plaintiffs. Let us now give that evidence brief attention. It will be recalled that the majority say: “One of their teachers, Professor Brown, at Willamette University, suggested that they [the plaintiffs] were accused of being ‘slickers’ ”. Professor Brown did not testify. The sole reference to him was made by the plaintiff, John E. Marr. After he had sworn that Professor Brown used the word “slicker”, he was asked: “What did he say?” and answered: “Just jokingly, I would say, because you know his character. ’ ’ It is not amiss to add that the record does not indicate whether Professor Brown had ever seen the article. John testified: “Whether these people actually read the article or not, I don’t know.” An yet it is testimony of that ldnd which the majority cite in support of their holding.
Robert swore that after the article appeared some of the students applied the term “slicker” to bfm and even mentioned “jail”. Those who indulged in the remarks were friends who had been in his home. In reply to the question “Did they say that seriously *44or jokingly?” lie answered: “Well, I wouldn’t say which” hut shortly added, “so far as the jail thing was concerned, that was said to me jokingly.” According to him, all who engaged in the remarks, which clearly were nothing hut banter, remained his friends and made no change in their relationship to him. R. J. Chance, one of the students to whom the plaintiff Robert referred in the testimony of which I just took notice, used the word “razzing” in describing the manner in which he applied the article to the plaintiffs.
H. R. Woodburn, another of the students, testified: “If you mean we thought they were slickers or crooks, naturally we didn’t, but if you mean that we thought that the article meant slickers and crooks, we did. But they weren’t accused of being slickers and crooks.” He added, “They were never accused of being slickers and crooks” by any student following the appearance of the article.
The plaintiff, John Marr, was asked: ‘ ‘ Did anybody, as a matter of fact, indicate a belief to you that you were in fact a slicker in the radio business?” He answered, “To me? No.”
The prevailing opinion says: “at least ten of their friends and acquaintances, who knew about their business venture and their method of conducting it, at once thought that it was the plaintiffs who were the objects of the libel.” I am not certain of the manner in which the majority compiled its total of ten. Thirteen witnesses testified. Two of the thirteen were the defendants who, under examination by plaintiffs ’ counsel, disclosed their financial worth; two more were the plaintiffs themselves, and three of the thirteen were the local chief of police, a deputy sheriff and a deputy district attorney. Those three went no further *45than to indicate whether or not they had received complaints concerning the loss of radio instruments. I have now accounted for seven of the thirteen witnesses and we have six left. One of the remaining six was Perrin, the operator of the filling station who permitted the plaintiffs to use his telephone. His testimony was concerned only with the agreement under which his telephone was used. Thus we have left Chance, Hamilton, Woodburn, Marsland and Mrs. Melum, all of whom are mentioned in this or the majority opinion. Evidently the majority include in its total of ten Professor Brown, whom I have mentioned, and an individual by the name of Jerry Moore who, according to one of the plaintiffs, told him “it looked like we were out of business from that article, and more or less expressed the opinion that it had happened. ’ ’ I have now accounted for every individual who was mentioned by name during the trial with the exception of Mrs. Hamilton. The latter, however, did not testify and no one indicated her views. Robert, after referring to Chance and Woodburn, added, “There were more.” Evidently the majority, in addition to including both Brown and Moore in their total of “at least ten” include also not less than three of the “more”. It is evidently in that way that the majority feel justified in saying that the plaintiffs presented evidence showing that “at least ten of their friends and acquaintances, who knew about their business venture and their method of conducting it, at once thought that it was the plaintiffs who were the objects of the libel.”
Let us retrace our steps for a moment. When one reduces the list of “at least ten of their friends and acquaintances” to persons about whom we have ade*46quate information, only four are left. One of the four, as we have seen, went no further than to say “I thought it might apply to them” and another of the four termed his application of the word “slicker” to Robert as “razzing”. Still another gave this evidence:
“Q Not knowing the Marr boys, how would it apply to them? •
“A Well, not knowing them, but if their ad read every pick-up and delivery, if people read the ad, if it were their practice, or anyone else’s practice, if I were not acquainted with the number, I wouldn’t call anyone. And I think anyone advertising that way would suffer.”
Others gave similar testimony. It was in the way just indicated that an effort was made to render the article applicable to the plaintiff — that is, to their advertising, not to them individually. Their friends feared that the article would destroy the drawing power of their advertisements. But, if people refrain from telephoning to “Ph. 9098”, am I defamed if it develops that I am the one who inserted the advertisement in the paper? Possibly everyone who hesitated to telephone to “Ph. 9098” would have entrusted their radio sets to the plaintiffs had they known the plaintiffs’ names or the location of their shop.
The fundamental issue in this case is this: When. evidence of the kind just reviewed is presented as support for an averment that the plaintiffs were the persons purportedly described in an article such as the one before us, must the court submit the contention to the jury? My answer is no. Hundreds of similar situations evidently arise every month and, hence, I say that the issue just stated is fundamental. I will presently state the issue more clearly.
Reverting to the published article, it will be observed that it is nothing but a warning to the owners *47of radio sets that unscrupulous persons were operating a racket whereby they gained, through false pretenses, the instruments of trusting householders. The article did not even say that the racket had entered Salem. Its purpose, obviously, was to caution persons against entrusting their instruments to strangers. It made no attempt to describe any person, and its references to the practices of the unscrupulous were guarded by such terms as “what appears to be”, “the common practice”, “in most instances” and “in some cases”. Anyone who read the article at once realized that it described no one, and that its author was unable to delineate accurately the practices of the “slickers”. Therefore, those who read the article knew that the guarded, general terms which it employed would not enable him to detect the identity of the unscrupulous.
One often encounters warnings. Almost everyone has given one. Not infrequently the President of our country gives warnings against political, economic and social practices which he deems inimical to the general welfare. Trade associations, such as the Better Business Bureau, publish warnings and thereby save people from losses which they would otherwise suffer. Lodges, through their fraternal publications, frequently give warnings and thereby protect their members from imposition. In our state, where the initiative and referendum are employed, proponents and opponents of measures many times issue warnings so as to prevent deception by those who are circulating the needed petitions. Everyone can recall reading in the daily press warnings about counterfeit money which has made its appearance. Normally, the warnings do not attempt to describe anyone. As in the present instance, they allude to the practices of the imposters and the evil wrought thereby.
*48If liability can be as easily established against one who has given a warning as the majority permit in this case, then the matter of issuing a warning will be more precarious than the nefarious acts of the persons against whose predatory conduct the public needs an alarm. For if all that is necessary is the testimony of friends who mentioned the matter by way of “razzing” or “just jokingly” or who thought “it might” apply to the plaintiffs, plus evidence that blind advertisements no longer drew business, who will have the temerity to give warnings?
The manner in which the plaintiffs contend that they were identified in the article as the persons against whom it was purportedly aimed and, therefore, as the persons whom it supposedly defamed, is averred in their complaint as follows:
“At the time of the publication of the article which is hereinafter described and for some time prior thereto plaintiffs were the only persons in the city of Salem, Oregon, engaged in the radio repair business who so maintained a free pick-up service and who so advertised said service.”
The complaint does not allege that the plaintiffs were the only advertisers who identified themselves through the use in their advertisements of only a telephone number, and, as we all know, every issue of city newspapers contains many advertisements which omit the advertiser’s name and give only his telephone number. Thus it is seen that the plaintiffs, after describing themselves in their complaint as “the only persons in the city of Salem, Oregon, engaged in the radio repair business who so maintained a free pick-up service and who so advertised said service”, claimed that people who read the article at once thought that *49they [the plaintiffs] were slickers and operators of a radio racket. The complaint does not allege that anyone knew that the advertisement which appeared daily, and which identified the advertiser only by the number “Ph. 9098”, had been inserted by the plaintiffs and that it was their advertisement. Nor does the complaint allege that anyone except the plaintiffs knew that they were conducting an advertising campaign wherein they employed a telephone number only. Unless someone who read the article knew that the advertisement which employed the designation “Ph. 9098” was the plaintiffs’, he surely would not have applied the article to them.
I do not believe that the purpose of § 1-908, OCLA, which the prevailing opinion quotes, was intended to dispense with the necessity of averring a fact of the ldnd just mentioned and which is absent from the complaint. If material facts can be safely omitted from the complaint, then the plaintiffs could, with equal reason, have omitted from their complaint the paragraphs which described their business, quoted their advertisement and stated that they “were the only persons in the city of Salem, Oregon, engaged in the radio repair business who so maintained a free pick-up service and who so advertised said service.” The purpose of § 1-908, OCLA, was to rid the practice in defamation cases of the extreme common-law technical rules which governed such actions. Let us bear in mind that a demurrer was filed against the complaint, and that the case is before us upon a ruling which sustained a motion for an involuntary nonsuit. I am satisfied that the complaint does not state a cause of action. The defect is not a mere matter of pleading, but is a fundamental one which shows an inherent defect in the entire case.
*50From the foregoing, we see that the plaintiffs contend that since they were the only radio repairmen in Salem [so they allege] who offered “a free pick-up service”, they were at once identified by readers of the article as slickers and operators of a radio racket. Actually their advertisement did not confine itself to “a free pick-up service” but to “Free pick-up delivery”, but I shall pass by that variance.
Let us now see what developed upon the trial.
Following appearance of the article, the plaintiffs, acting together, searched through the local newspaper files to ascertain whether an advertisement of the kind mentioned in the article had appeared in the period of November 25 to December 4, 1946. In reporting the results of their search, the plaintiff, Bobert Marr, gave the following testimony:
“Q Did you look for advertisements of dealers in other items, which might be similar?
“A No, sir.
“Q Did you look for advertisements of radio dealers advertising pick-up and delivery service?
“A No, we didn’t look for that.
“Q You are not prepared to say then, I take it, that there were not advertisements in newspapers preceding December 4th, of local radio service people advertising pick-up and delivery service?
“A I will not say as to that.
“Q You will not say there were not such ads?
“A No, I won’t say there were no such ads.
“Q Do you happen to know the answer to the question as to whether or not there were ads of that kind frequently in the papers, preceding December 4th, 1946?
“A You ask what?
“Q I asked if you do know, as a matter of fact, from any search you may have made, whether other *51repairmen in Salem advertised pick-np and delivery service in the Salem newspapers ?
“A I don’t know whether they did or not. I didn’t look for that.
“Q Didn’t you read other radio repairmen’s advertising matter?
“A I think not.”
If that testimony stood alone, the plaintiffs could not recover; but the prevailing opinion says: “John testified that he examined'copies of the Capital Journal, the Statesman, and the Capital Press, another newspaper published in Salem, for the ten days immediately preceding the publication of the article and found no advertisement other than the plaintiffs’, which was in substance the same as that described in the article.” The examination of the newspaper files which the plaintiffs made was conducted by them jointly; that is, they were together and were cooperating. John’s description of the examination and its results was very brief. He said that the plaintiffs sought to find “an article within the past ten days that could be the,— that the substance could be as this article mentioned.” That was the only inkling that he gave as to the objective of the search: “an ad * * * that could be the,— that the substance could be as this article mentioned.” His testimony included no details such as those which featured his brother’s.
Two or three of the plaintiffs’ friends searched through a single issue or a day’s publication, but, in reporting the results of their searches, used qualifying phrases such as “It generally had a name — generally” or “I am pretty certain about it.” Chance, however, gave this testimony:
‘ ‘ Q Do you mean to say that there are not other ads which have pick-up and delivery?
“A For pick-up and delivery of radios.
*52££Q In the ads?
“A. Yes, in the ads. The Marr hoys were in the radio business.
££Q Yes, we understand that. But do yon know there are other ads in that issue?
££A Yes, which have only a telephone number. Yes.”
If the testimony of the two plaintiffs, who are held by the majority to have been partners in the venture which preceded the filing of this action, was contradictory it cannot support the quoted paragraph of the complaint. Both men are plaintiffs and, as just stated, the prevailing opinion holds that they were co-partners in their little business venture. If the one testified at variance to the other, he destroyed his co-plaintiff’s testimony and, in that event, the quoted paragraph of the complaint was left without support. Surely, under such circumstances, a court would not submit to the jury the issue as to which of the two plaintiffs told the truth. But, if the two plaintiffs did not testify in contradiction to each other, the fact must be that they had not examined the advertising files in quest for advertisements inserted by radio repairmen who offered pick-up and delivery service. In that event, we must assume that Robert’s detailed testimony, in which he swore that no effort was made to determine whether or not the newspapers contained such advertisements, reflected the results of the search. If such was the case, the quoted averment was likewise without support; in fact, in that event, the averment was shown by positive testimony to have been untrue.
The above, I believe, suffices to dispose of this case. The very paragraph of the complaint by which the plaintiffs sought to fit the article to themselves lacks support in the evidence. Under the circumstances, there *53is nothing which this court can do but sustain the judgment which is based upon the order of involuntary nonsuit.
There is still another reason which satisfies me that no error was committed when the motion for a nonsuit was sustained.
As I have pointed out, the plaintiffs sought to bring themselves within the terms of the article by alleging that they “were the only persons in the city of Salem, Oregon, engaged in the radio repair business who so maintained a free pick-up service and who so advertised said service.” As I have shown, the averment was not supported by evidence, but, even if it had been, it could not have warranted anyone in applying the article to the plaintiffs. The publication did not say that all radio repairmen who offered free pick-up service and whose advertisements identified them only by a telephone number were slickers or unreliable. No such intimation was made in the article. To place such a construction upon it would be absurd. And, accordingly, no reader of the article would have been justified in concluding that the advertisement which appeared under the number of “Ph. 9098” was that of an unscrupulous person. The conclusion would not have been warranted even if the reader, after searching through the newspaper’s advertisements, had found only the one inserted by the plaintiffs.
Let us see what the authorities say. In Service Parking Corporation v. Washington Times Co., 92 F2d 502, the defendant’s newspaper published an article which the plaintiff claimed was libelous. The heading of the publication was: “Parking Lot Racket Probe Ordered Here — Major Brown Says Chiselers Renting Space Move Cars to Streets; Even Pay Fines.” The article which appeared under that heading stated that *54the district attorney’s office and the local police, acting under their superintendent, Major Ernest Brown, had instituted “a drive * * * to halt the chiseling of parking lot owners and garages. ’ ’ Continuing, it indicated that parking lot owners, after accepting cars, sometimes drove them off the lot and reparked them in the streets “thus allowing more space on the lots, and less on the streets.” After reciting other facts to similar effect, the article said: “The police superintendent hoped that some automobile owner who finds his car parked on the streets, after placing it on a lot, will call police and place charges of ‘obtaining money under false pretenses’ against the parking lot owner.” The complaint, which quoted the article, averred appropriate innuendo applying the article to the plaintiff-appellant. During the trial the plaintiff proved that in the downtown section of the city there were from twenty to thirty parking lots and that they were operated by ten or twelve owners. The plaintiff owned nine of the lots. The plaintiff then called a witness who testified that he was acquainted with the manager of the plaintiff’s parking lots, that he had from time to time used the lots and that he had read the article. He was then asked whether or not he had formed an opinion from reading the article as to whom the latter applied. The defendant’s objection to the question was sustained. The plaintiff then offered to prove by the witness that the latter understood the article to refer to the plaintiff and meant that the plaintiff was guilty of the course of conduct described in the article. The defendant’s motion for a directed verdict was sustained. The decision under review affirmed both rulings. It said:
“To the general rule that opinion evidence is not admissible, an exception is recognized in libel *55cases in some jurisdictions. It is held that if the defamatory statement does not name the plaintiff hut does use terms or mention circumstances of an identifying nature, a witness who knows the parties and the identifying effect the terms and circumstances may state his opinion as to the application thereof to the plaintiff. * * * The testimony proffered in the instant case is not within the exception recognized in the cited cases. * * * The witness whose testimony was proffered in the instant ease was not shown to possess any special knowledge of identifying terms or circumstances which put him in any better position than the jury to draw inferences as to the application of the article to the appellant.”
Wigmore on Evidence, 3d ed, § 1971, is in harmony with the rule employed in that case. I quote:
“ * * * the private understanding of an individual hearer (as distinguished from the ordinary sense of the words) cannot in theory be offered, until it is first shown that some circumstances was known to him which reasonably gave the words a special meaning.”
The following is taken from 53 CJS, Libel and • Slander, p. 311, § 201 :
“In general, testimony of readers or hearers as to what they understood the alleged defamatory words to mean is inadmissible where the words are unambiguous and plain; but such evidence may be admitted where the meaning is doubtful or ambiguous or the words are actionable only by reason of extraneous facts.”
The quotation which follows is taken from the same volume at page 316:
“As a general rule, testimony of witnesses who read or heard the defamatory charge that they understood it to refer to plaintiff may be admissible, especially where the words are ambiguous as to the *56person referred to. However, it has also been held that, while whatever relevant facts outside the publication could have enabled a witness to form an intelligent opinion or understanding that an offensive term was intended to be applied to plaintiff may be placed before the jury, the opinion of a witness as to the intended application of the defamatory words to plaintiff is inadmissible unless at least peculiar circumstances are shown, either as respects the language employed or the manner of its utterance or publication, as, for instance, where the charge is made by equivocal expressions, insinuations, gestures, or intonations of voice.”
The rule which was employed in the Service Parking Corporation case, whereby the understanding of the readers is received only if they possess special knowledge of the meaning of the terms employed in the publication, has been adopted in this state. State v. Mason, 26 Or 273, 38 P 130, 26 LRA 779, was based upon a defamatory publication which, in seductive terms, dwelled upon a purported “love nest” and its frequenters. The location of the property and the identity of its owner were given in words which were indefinite and ambiguous. Witnesses were permitted to state their understanding that the article referred to the complaining witness. In holding that no error was committed, this court ruled:
“But, on the other hand, it is held, and we think with better reason, that when the words are ambiguous as to the person intended, and their application doubtful, persons who read the libel and are acquainted with the parties and the circumstances, may state their judgment and understanding as to whom the libelous charges referred.”
In that case, each witness, who was permitted to express his understanding, was familiar with the premises, its owner, and the use to which the property was devoted. *57The jurors lacked the witnesses’ first hand information. Thus, each witness had special qualifications which rendered his understanding admissible and lent significance to it. The understanding was admissible, not merely because the publication contained intended ambiguities, but also because the witnesses were specially qualified to express opinions of value.
Now let us take notice of the manner in which the witnesses in the instant case were permitted to express their understanding that the warning referred to the plaintiffs.
Mrs. Melum, after testifying that she was acquainted with the plaintiffs, their advertising, their shop and the article, was asked: “To whom did you think it referred?” At that point the defendants interposed an objection similar to the one which was sustained in the Service Parking Corporation case. The objection was lengthy and included the following: “I ask that the record show that the matter had been previously argued to Your Honor.” The trial judge granted that request. He then overruled the objection, saying:
“The article will speak for itself. It is not claimed and I do not believe that it is ambiguous in its terms or the language used. With the understanding that the testimony is received solely for the purpose of identification of the individuals to whom it might refer, the objection will be overruled.”
It is clear that the objection should have been sustained. Mrs. Melum answered:
“Well, I believe that it referred to Bill and Bob Marr’s new business, because I had been looking for their advertising, now they were starting in the business. And looking for the advertising — it was practically on this same sheet of paper there was *58their ad, with no address on it, which this item applied to. And I didn’t see any other ads in there that gave the same reference. That is the reason I connected the two of them. ’ ’
The objection which was made to the question propounded to Mrs. Melum was repeated when similar questions were submitted to the other witnesses. In each instance the objection was overruled. Chance answered the question in this way:
“My first thought was that it was implying that the Marr boys or someone like the Marr boys were running a slicker racket, and since they were in that business, I thought that it applied to them or anyone else in that business.”
His answer, manifestly, was based upon a misinterpretation of the article. The latter does not say that all repairmen who advertised under a telephone- free pick-up service were slickers. He, like Mrs. Melum, had no special qualifications for giving an opinion or offering an understanding concerning the application of the article to anyone. Everything that he knew about the case had been detailed by him in a hundred words or so of testimony. After he had divulged his knowledge, the jury was in as good a position as he to draw a conclusion as to whether or not the article was applicable to the plaintiffs.
Enough has been said to show that the objections should have been sustained. None of the witnesses possessed special qualifications for determining whether or not the article was applicable to the plaintiffs. When an issue concerning the application of an ambiguous publication, purportedly defamatory, is submitted to a jury, the latter resolves the issue in obedience to the instructions of the presiding judge, but when the witnesses in a case such as this are permitted to offer *59their “understanding” they do so without any help whatever from the rules which govern the construction of language. It will not do to try to justify the reception of such evidence by saying that the witnesses merely voice the reactions of the readers or the hearers. As will be seen from the answers which I quoted from the witnesses in this case, they attempted to construe the article. They essayed to duplicate the work of a judge or a juror. Manifestly, the witnesses, in making their attempted constructions, were influenced by their special interest in the plaintiffs. The circumstances of which I have taken notice commend the wisdom of the rule which excludes all opinions and understandings unless (1) the utterance under scrutiny was ambiguous and (2) the witness possessed qualifications superior to those of the twelve men in the box. The presiding judge, after he had heard extensive argument, ruled that the article was not ambiguous. The appellants do not contend that he erred when he so ruled. No claim whatever is made that the four witnesses who were permitted to express opinions possessed special qualifications. I repeat, the objections should have been sustained.
Notwithstanding the fact that the “understanding” or “opinion” testimony should not have been received, the prevailing opinion features it and ascribes superior cogency to it. In fact, although only four witnesses gave their “understandings”, the majority say, in the terms which I quoted in a preceding paragraph, “at least ten of their friends and acquaintances, who knew about their business venture and their method of conducting it, at once thought that it was the plaintiffs who were the object of the libel.” That statement shows the extent to which the rule given in State v. Mason, supra, is violated in holding that all of the *60aforementioned testimony was admissible and entitled to consideration by this court.
I now return to the Service Parking Corporation decision. The court in that action took note of the rule employed in libel cases which does not permit a member of a large class, allegedly defamed by a publication, to maintain an action, but which allows a member to proceed with an action if the group is sufficiently small. The decision, written by capable Justice Stephens, in that case said:
“The rule thus stated by the courts and text writers represents, undoubtedly, what has been regarded as a sound compromise between the conflicting interests involved in libel cases. On the one hand is the social interest in free press discussion of matters of general concern, and on the other is the individual interest in reputation. The courts have chosen'not to limit freedom of public discussion except to prevent harm occasioned by defamatory statements reasonably susceptible of special application to a given individual.”
The court quoted the following from Odgers, Libel and Slander (6th ed, 1929), page 123:
“The defamatory words must refer to some ascertained or ascertainable person and that person must be the plaintiff.”
and then ruled:
“ * * * The jury could not reasonably have concluded from the appellant’s evidence that the article referred ‘solely or especially’ to him. Putting it otherwise, we think that the jury must reasonably have concluded that the article was ‘published against a class or aggregate body of persons * * * G-iving the appellant the benefit of all legitimate favorable inferences, the article could not reasonably be said to concern more than downtown parking lots and their owners as a class. There is no language referring ‘to some ascertained *61or ascertainable person.’ Nor is the downtown class so small, as shown by the appellant’s evidence, as to cause defamation of it to defame the appellant.”
In Watts-Wagner Co. v. General Motors Corporation, 64 F Supp 506, the plaintiff sought to accomplish the very purpose which our two plaintiffs seek. The plaintiff in that case was unsuccessful. The articles in that case spoke of an “army of racketeers who are sweeping the country” and selling to “unwary car owners” worthless panacea for battery troubles. The phrase “army of racketeers” was possibly an extravagant one, but, since it was the one which the defendant used in its publications and by which it defined those with whom its warnings dealt, the court held that it (the word “army”) governed the issue as to whom the articles were applicable. The court repulsed all efforts of the plaintiff to contract or reduce the ‘ ‘ army” to a few persons and, more especially, to shrink the “army” down to the plaintiff itself. For instance, the plaintiff, in seeldng to deflate the term “army” and make the attacked publication fit the plaintiff, claimed that (1) the defendant had the plaintiff and the latter’s product in mind “when this statement was made”, and (2) notwithstanding the publications’ use of the word “army”, the purportedly defamed class was, in fact, “a small one”. The efforts failed. Thus, the plaintiff in that case, as the plaintiffs in the case at bar, sought to rewrite the article so that in its rewritten form it would fit and become applicable to the plaintiff. The court repelled the efforts by ruling:
“ * * * if it is not apparent from a fair reading of them [the articles] that the statements concerned the plaintiff, a cause of action may not be read into them by the claim that the plaintiff was the intended party, or by extending their meaning through innuendo.”
*62Even a hasty glance at the article upon which the plaintiffs in this case rely shows that it was concerned with the evil practices of a sizeable group of wrongdoers. Common sense would induce any reader to infer that the “slickers” possibly were not local residents but were very likely transients or fly-by-nights who move on and are gone before their guilt catches up with them. In short, the article spoke of a considerable number, fungible in nature, and unknown in exact size. And yet the majority permit the plaintiffs to reduce the number to two, that is, to the two plaintiffs. In fact, since the majority hold that the plaintiffs are a partnership, they reduce the number down to a single small business unit. In that way the article is rewritten. Likewise, in that way a newspaper publisher, who carefully chose his words, is deprived of control over them.
Newton v. Grubbs, 155 Ky 479, 159 SW 994, 48 LRA (NS) 355, was based upon a slander action in which the defendant was a physician and the plaintiff was a former patient of his. According to the record in that case, the defendant had related to several persons an experience in his practice which he had with a young woman. In relating the experience, he never used the plaintiff’s name and never disclosed the former patient’s identity, but, in some unexplained way, the plaintiff’s name became associated with the episode and several witnesses testified that when the defendant related the experience they thought that he had the plaintiff in mind and identified her. I now quote from the decision:
“Clearly appellee [defendant] was entitled to a peremptory instruction; and, that being true the other questions made need not be noticed. The fact that persons to whom appellee told this incident *63thought at the time from outside rumors that he referred to appellant, when in fact he did not, cannot make him, liable.”
Mueller v. Radebaugh, 79 Kan 306, 99 P 612, is a further illustration of the holdings which permit the writer or publisher to retain control over his words.
.The decision said:
“The petition alleges that the article was published of and concerning the plaintiff, and the main contention is that the court erred in refusing to permit a number of witnesses to testify as to whom they understood the article referred when they read it. The general rule is that it is for the jury to say what person the alleged defamatory words referred to. This doctrine is laid down in Newell on Slander and Libel, 767, as follows: ‘But witnesses cannot be called upon to state to whom they understood the defamatory matter to refer.’ There is some conflict in the authorities upon the question, and there may be circumstances under which evidence of the character may be admitted. No such circumstances are shown here. Moreover, from our view of the case, the decision of the question becomes unnecessary. There is nothing in the article itself that can be called libelous. It appears on its face to have been published in a bona fide effort by the defendant to recover his stolen property and to bring to justice the guilty persons. There is not a word of the evidence which in our opinion tends to contradict this. This is not a case where a libelous charge is imputed by insinuations -or equivocal expressions which require extraneous testimony to explain. Not only does the article make no reference by description or circumstance which would tend to identify the plaintiff, but there is nothing in the language which would lead the casual reader to suppose that defendant had any person in view as guilty of the crime. It is like the everyday occurrence of offers of reward for stolen property. It *64accuses none but the guilty persons, whoever they may be. The persons by whom it was sought to prove their understanding were acquainted with the fact that the defendant had suspected the plaintiff of taking the goods. From the knowledge of these circumstances, it is claimed that they understood the article to refer to the plaintiff; but they might have been mistaken notwithstanding their knowledge of the extraneous facts. There is nothing in the article which justified them in assuming that it referred to the plaintiff. The defendant might have suspected the plaintiff at one time, and then have become satisfied of her innocence and have published the article in the best of faith. The plaintiff would hardly contend that she was known to be the only person in that county in the habit of giving Christmas presents, or that she was known to be the only person liable to make presents of silks or shirt waist patterns; and otherwise no one would understand that the article referred to her.”
I return to State v. Mason, supra, and this time quote from it as follows:
“In either case it is incumbent on the plaintiff or prosecution to show by proper averments and proof that the defendant intended to apply the words used to the plaintiff or person designated in the indictment as the subject of the libel; and evidence competent in the one case must necessarily be so in the other. The object and purpose to be attained by such evidence is the same in civil and criminal cases, and the reason and necessity for its admission applies with equal force to both classes of actions.”
It must be clear that the defendant never intended to apply the words of the questioned article to the plaintiff.
I deem it unnecessary to resort further to the authorities. I am satisfied, for the many reasons stated above, that the circuit court properly sustained the *65defendants’ motion for an involuntary nonsuit and that it properly entered judgment for the defendants. The action taken by this court, I believe, is fraught with danger for that invaluable right known as freedom of communication.
I believe that the testimony upon which the majority principally rely was inadmissible. I also believe that the publication was nonambiguous and incapable of the construction which the plaintiffs place upon it. The judgment for the defendants should be affirmed.
I dissent.