Appeal from Circuit Court, Klamath County. L. Orth Sisemore, Judge.
Michael J. Bird, Grants Pass, argued the cause for appellant. On the brief were Brown and Hughes, Grants Pass.
Stanley C. Jones, Klamath Falls, argued the cause for respondent. With him on the brief was J. Anthony Giacomini, Klamath Falls.
In Banc. Denecke, J. McAllister, J., concurs in the result.
Plaintiff alleged the defendants libeled him and sought damages. The defendant Hyde filed a demurrer to plaintiff's complaint which was sustained and upon judgment in favor of Hyde, plaintiff appealed. Dial Press, Inc., is no longer a party.
The defendant Hyde wrote a book in which he stated:
"There was a house of sorts, woman's carpentry mostly, since Al [plaintiff] was lazy.
"* * * [A]lthough a roaring fire took care of that [wind blowing through the house], as long as Mamie [plaintiff's wife] would get the wood.
"Through Mamie's industry, they built a barn and corrals for the horses and thin, pinto cattle, then dammed up the spring into a large pond so that Al could sit and watch the reflection of the day, and see the double image in its mirror calm of Mamie scooping up a bucket of water to pack up the hill.
"It was undoubtedly Mamie who dug the big root cellar into the hill * * *.
"According to him [Hyde's uncle], Al Farnsworth [plaintiff] ranked close to being the laziest
man in the world. He was always falling asleep on the mower and would end up drowsing with his team standing quietly idle somewhere off in the jackpines, where the mower had finally run into a tree too big to cut."
The sole issue on appeal is whether these statements can be considered libelous. The trial court held as a matter of law they could not.
The court, as distinguished from the jury, determines whether a communication is capable of a defamatory meaning. Fowler v. Stradley, 238 Or 606, 617, 395 P2d 867, 11 ALR3d 873 (1964), ...