Before DUFFY, Chief Judge, MAJOR and PARKINSON, Circuit Judges.
This libel action was instituted by plaintiff Crosby, a citizen of the State of Oregon, against defendant, Time, Incorporated, a New York corporation. Jurisdiction rests upon diversity of citizenship, together with the requisite jurisdictional amount. The District Court, on defendant's motion, dismissed the complaint because of failure to state a claim upon which relief can be granted. Whether that Court was justified in so doing is the sole issue before this Court.
The complaint alleges that defendant's weekly magazine, circulated in the States of Oregon and Illinois, and in the eleven Western States of the United States, in its issue of June 4, 1956, maliciously and falsely printed an article defamatory of plaintiff; that plaintiff for a considerable period of time had been the International Representative for the State of Oregon of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, and in such capacity represented the Teamsters and its subordinate bodies throughout the United States, particularly in Chicago and in the eleven Western States, and that plaintiff had for many years enjoyed a good reputation among members of the Teamsters, among employers with whom that organization deals and with the public generally.
The article constituting the alleged libel, entitled "Scandal in Portland," is set forth verbatim in the complaint and appears to have been previously published in the Oregonian, a Portland newspaper. It would unduly prolong this opinion and serve no useful purpose to set forth the complete article. However, the sufficiency of the complaint being in issue, it is essential to set forth that portion upon which plaintiff relies as constituting the libel which, as stated in his brief, is as follows:
"* * * top Western officials of the International Brotherhood of Teamsters were conspiring with Seattle gamblers to (1) control Portland's law enforcement agencies, (2) organize all the city's rackets, from pinball machines to prostitution. * * *
"* * * the Seattle plotters approached Racketeer Elkins to join them * * * in * * * the scheme to organize gambling and bootlegging * * * prostitution * * *.
"Fearing that they planned to freeze him out, Elkins took the precaution of 'bugging' the Portland apartment of the Seattle emissaries with a microphone hooked to a tape recorder. On the playback he heard them plotting 'to get rid of me.'
"Elkins told the Seattle boys about his tapes and threatened to use the recordings to expose the plot unless the Teamsters and their underworld allies dropped it. * * *
"In one of the tapes a Teamster intimate scoffed: 'The Oregonian or the Journal won't take the Teamsters on * * *. All the Oregonian's got to do is (food) around with the Teamsters and the first thing you know, them guys will be up there wanting 10 or 15 cents an hour and the Oregonian can't afford it.' * * *
"* * * racketeers who were plotting to 'open the town'.
"Among other accusations, the Oregonian reported that the plotters had threatened Portland Mayor Fred Peterson with political reprisals by the Teamsters if he did not get rid of his police chief.
"Mayor Peterson confirmed the charge. The Oregon Teamsters' representative, Clyde Crosby - whom the Oregonian revealed as an ex-convict - admitted that he had tried to get the mayor to fire Police Chief Jim Purcell, but only, he said, because the chief was in cahoots with Racketeer Elkins. * * *"
The complaint alleges that the quoted language is false and was intended by defendant to refer to or include plaintiff and was understood by all persons who read the article as referring to or including plaintiff. It will be noted that plaintiff's name is found only in the last paragraph. It should also be pointed out that no importance attaches to the phrase (following plaintiff's name), "whom the Oregonian revealed as an ex-convict," because that admittedly was a true statement. Thus, the only statement directly relating to plaintiff is that he "admitted ...