This is an action for civil libel. The complaint states two causes of action, each arising out of an editorial published by defendants concerning plaintiff when he was prosecuting attorney of Franklin county. A demurrer to both causes of action was overruled by this court. Gaffney v. Scott Publishing Co., 35 Wn. (2d) 272, 212 P. (2d) 817 (1949). The cause was tried to a jury, and a verdict returned for the defendants on the first cause of action and for the plaintiff on the second. Defendants have appealed from the judgment entered on the verdict against them.
The editorial upon which the second cause of action rests, is set forth in full in our previous opinion under the heading, ‘-Gaffney Hasn’t Learned,” p. 275. By the law of the case established in that opinion, the editorial is libelous per se.
Defendants alleged “fair comment” as an affirmative defense, including allegations of their honest belief in the truth of the publication, their good faith, and lack of malice or intention to harm plaintiff. All these allegations were stricken on motion of the plaintiff. The court ruled that the defense of truth was the only one available to defendants, and adhered to this ruling in instructing the jury. Defendants’ assignments of error upon this ruling and upon *193the instructions given and proposed will be considered together.
The principal defenses to an action upon a publication libelous per se are consent, truth, absolute privilege, qualified or conditional privilege, and fair comment or privileged criticism. See 3 Restatement, Torts, 215. There is no consent or occasion of absolute privilege in this case. In the argument on the demurrer before this court, defendants (then respondents) urged in their briefs that the editorials were within the privilege accorded to newspapers when making open comment concerning public officers. Also, upon the face of the complaint, it was apparent that it pertained to a public officer. The question of privilege was raised and reached by the demurrer. Arnold v. National Union of Marine Cooks & Stewards Ass’n, 36 Wn. (2d) 557, 563, 219 P. (2d) 121 (1950).
Whether that claim be classified as one of qualified or conditional privilege, or as one of fair comment or privileged criticism, we need not decide. Nor need we decide whether or not the editorial contains statements of fact or conclusions, in connection with the possible applicability of the defense of fair comment or privileged criticism. However the defense be designated, in the previous decision of this case the court held (p. 276):
“The law properly gives to the public press encouragement to voice its criticism of the conduct of public officials; but, in the exercise of such privilege, a publication which imputes to them misconduct in office, want of official integrity or fidelity to public trust, if false, is a violation of that privilege and gives rise to an action for damages. [Citing cases and authorities.]”
This eliminated all issues in the case except that of truth. In other words, the law of the case is that any privilege defendants may have had was abused if the publication was false. The evidence upon this issue was in conflict. It presented a question to be submitted to the jury, under proper instructions. We find no error in the instructions given or in the refusal to give those proposed. The verdict rests upon substantial evidence, and we will not disturb it.
*194The defendants also assign error (1) upon the exclusion of a certain radio address made by plaintiff shortly after the publication of the editorial; (2) upon the failure of the court to permit cross-examination of plaintiff regarding the trial of one Connell, subsequent to the publication of the editorial, for the offense described in the editorial; and (3) upon the exclusion of evidence pertaining to a vice raid made in the county soon after the date of the editorial. Defendants contend that these rulings excluded evidence relevant to the issue of the truth of the statements in the editorial.
Regarding (1), admittedly nearly all of the radio address was irrelevant. Assuming, as defendants contend, that a portion of it disclosed plaintiff’s attitude of mind, and that his attitude was relevant, he was subjected to cross-examination on any relevant matters in the radio address itself. Plaintiff’s answers to these questions and others were, in substance, the same as his radio address. The defendants were not prejudiced, in any event, by this ruling.
As to (2), the failure of plaintiff.to prosecute this case and his reasons for not doing so were explored in his cross-examination. The action of plaintiff before the publication was the issue raised by the editorial, and not whether Connell was guilty.
Regarding (3), the raid was not shown to have been conducted by plaintiff, nor was the conduct of such raids within his duties as prosecuting attorney. This proffered evidence was riot relevant. We find no merit in these claims of error.
The basic portion of this decision is, of necessity, upon quite narrow ground. The trial court was bound to follow the established law of the case, and our only inquiry is whether or not it did so correctly. There may be merit in the contention of counsel, particularly as set forth in the excellent brief and argument of amici curiae, that some of the law of libel expressed in our previous decisions should be recanvassed. This subject was considered upon the first assignment of this case and also upon its reassignment after *195further conference, but we have concluded that we are foreclosed from its determination in this proceeding.
The judgment is affirmed.
Schwellenbach, C. J., Mallery, Grady, Donworth, and Weaver, JJ., concur.