KESTER, J.
This is an appeal by defendants from a judgment for plaintiffs in an action of libel.
The case was previously in this court after a non-suit had been granted. In Marr v. Putnam, 196 Or 1, 246 P 509, the judgment of nonsuit was reversed and the cause was remanded for a new trial. The case was tried again on the same pleadings, and plaintiffs’ evidence on the second trial was substantially the same as on the first trial. The jury returned a verdict for plaintiffs in the amount of $4,000, upon which the judgment was entered from which this appeal is taken.
In view of the full discussion in the prior opinion, our statement of facts will be brief. Plaintiffs, John E. [21]*21Marr and Robert B. Marr, who were brothers, were engaged in a small radio repair business in the city of Salem, as a sideline while they were students at Willamette University. Their workshop was in the attic of John’s house, and John did the repair work while Robert attended to the business end. Business was solicited primarily by newspaper advertising, and from the latter part of November continuously until the end of December, 1946, they inserted in the two Salem daily newspapers, the Capital Journal and the Oregon Statesman, the following advertisement:
“GUARANTEED RADIO SERVICE, Free pick-up and delivery. Ph. 9098.”
The phone number was that of a service station, the operator of which had agreed to accept calls for them; and their practice was that upon receipt of telephoned orders Robert picked up the radio sets and took them to John’s house to be repaired, after which Robert redelivered the sets to the owners. On December 4, 1956, defendant Putnam (who was owner and publisher of the Capital Journal), acting on information supplied by defendant Moore (who operated a full-time radio repair business in Salem), published in the Capital Journal the following 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 practise [sic] of these slickers is not to operate from any established shop but just give a phone number of call and offer free pick-up service,’ according to Ray Moore, 3720 Portland road, who has had personal experience along this line.
[22]*22“ ‘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 he 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 that it was not there.’
“Moore suggests that the best curb on the racket is for 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.”
It is admitted that plaintiffs were not guilty of the practices referred to in the newspaper story; but defendants contend that the article was abstractly true, and that it was not intended, and could not reasonably have been understood, to refer to plaintiffs. Plaintiffs alleged and offered evidence, however, that at the time of publication of the article, and for some time prior thereto, they were the only persons in Salem conducting a radio repair business who advertised in that manner; and they offered evidence that some readers of the paper thought the article referred to them. After publication of the article, plaintiffs received only one more call by means of their advertisement.
Upon the second trial the court, applying the law as determined on the former appeal, limited the issues submitted to the jury to: (1) whether the newspaper article was applicable to plaintiffs; and (2) if so, whether the publication caused actual damage to plaintiffs’ business, and if so, in what amount. The jury was told that the article was libelous per se, and that [23]*23if it was directed to plaintiffs they were entitled to at least nominal damages. The matter of compensatory damages was expressly limited to plaintiffs’ business, as distinguished from personal damages, and the claim for punitive damages was withdrawn by the court.
Appellants submit twenty-four assignments of error, most of which present questions that were determined adversely to defendants on the former appeal. Under the well-settled doctrine of “the law of the case,” the former decision must be deemed to be controlling, so far as the questions are the same. Public Market v. Portland, 179 Or 367, 373, 170 P2d 586, cert. den. 330 US 829; Portland T. & S. Bank v. Lincoln Realty, 187 Or 443, 451, 211 P2d 736; Finn v. S. P. & S., 194 Or 288, 292, 241 P2d 876.
Defendants frankly ask that the former decision be reconsidered and overruled. However, that decision was the result of careful deliberation — the case was argued once and then reargued, the two dissenting opinions necessitated further consideration, and after the opinion was announced a petition for rehearing was considered and denied. While we agree with appellants that a court should not blindly adhere to a former decision that is manifestly erroneous, stability of the law requires that there be very cogent reasons for abandoning a former decision, particularly when it was between the same parties and on the same pleadings.
A number of defendants’ assignments of error (Nos. 5, 6, 7, 8 and 9) relate to the admission in evidence of testimony by various witnesses who knew the plaintiffs and their business, who had read the newspaper article at about the time it was published, and who, upon reading it, thought it applied to plaintiffs. Defendants’ argument here is twofold: First, [24]*24that the article was not ambiguous, and therefore that ■testimony was not admissible in any event to show its applicability to plaintiffs; and Second, that these witnesses were not shown to be specially qualified to draw an inference of its applicability to plaintiffs.
The arguments are foreclosed by the prior opinion. In that appeal, as here, defendants contended that the article was inapplicable to plaintiffs as a matter of law; but it was held that the question of applicability was one of fact, and for the jury. On the issue of whether the published article could reasonably have been interpreted as applying to plaintiffs, evidence was admissible that persons familiar with plaintiffs and their business did so construe it. The same evidence was offered on the former trial as is referred to in these assignments, and the same objections were made, but this court deemed the evidence competent and relevant and gave it weight in passing upon the propriety of the nonsuit. No special qualification was necessary, other than the witnesses’ familiarity with plaintiffs and their method of operation. Odgers on Libel and Slander 6th ed, pp 126, 559.
It is true that in State v. Mason, 26 Or 273, 275, 38 P 130, 26 LRA 779, the admissibility of such evidence was predicated upon the fact that the article was ambiguous.
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KESTER, J.
This is an appeal by defendants from a judgment for plaintiffs in an action of libel.
The case was previously in this court after a non-suit had been granted. In Marr v. Putnam, 196 Or 1, 246 P 509, the judgment of nonsuit was reversed and the cause was remanded for a new trial. The case was tried again on the same pleadings, and plaintiffs’ evidence on the second trial was substantially the same as on the first trial. The jury returned a verdict for plaintiffs in the amount of $4,000, upon which the judgment was entered from which this appeal is taken.
In view of the full discussion in the prior opinion, our statement of facts will be brief. Plaintiffs, John E. [21]*21Marr and Robert B. Marr, who were brothers, were engaged in a small radio repair business in the city of Salem, as a sideline while they were students at Willamette University. Their workshop was in the attic of John’s house, and John did the repair work while Robert attended to the business end. Business was solicited primarily by newspaper advertising, and from the latter part of November continuously until the end of December, 1946, they inserted in the two Salem daily newspapers, the Capital Journal and the Oregon Statesman, the following advertisement:
“GUARANTEED RADIO SERVICE, Free pick-up and delivery. Ph. 9098.”
The phone number was that of a service station, the operator of which had agreed to accept calls for them; and their practice was that upon receipt of telephoned orders Robert picked up the radio sets and took them to John’s house to be repaired, after which Robert redelivered the sets to the owners. On December 4, 1956, defendant Putnam (who was owner and publisher of the Capital Journal), acting on information supplied by defendant Moore (who operated a full-time radio repair business in Salem), published in the Capital Journal the following 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 practise [sic] of these slickers is not to operate from any established shop but just give a phone number of call and offer free pick-up service,’ according to Ray Moore, 3720 Portland road, who has had personal experience along this line.
[22]*22“ ‘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 he 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 that it was not there.’
“Moore suggests that the best curb on the racket is for 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.”
It is admitted that plaintiffs were not guilty of the practices referred to in the newspaper story; but defendants contend that the article was abstractly true, and that it was not intended, and could not reasonably have been understood, to refer to plaintiffs. Plaintiffs alleged and offered evidence, however, that at the time of publication of the article, and for some time prior thereto, they were the only persons in Salem conducting a radio repair business who advertised in that manner; and they offered evidence that some readers of the paper thought the article referred to them. After publication of the article, plaintiffs received only one more call by means of their advertisement.
Upon the second trial the court, applying the law as determined on the former appeal, limited the issues submitted to the jury to: (1) whether the newspaper article was applicable to plaintiffs; and (2) if so, whether the publication caused actual damage to plaintiffs’ business, and if so, in what amount. The jury was told that the article was libelous per se, and that [23]*23if it was directed to plaintiffs they were entitled to at least nominal damages. The matter of compensatory damages was expressly limited to plaintiffs’ business, as distinguished from personal damages, and the claim for punitive damages was withdrawn by the court.
Appellants submit twenty-four assignments of error, most of which present questions that were determined adversely to defendants on the former appeal. Under the well-settled doctrine of “the law of the case,” the former decision must be deemed to be controlling, so far as the questions are the same. Public Market v. Portland, 179 Or 367, 373, 170 P2d 586, cert. den. 330 US 829; Portland T. & S. Bank v. Lincoln Realty, 187 Or 443, 451, 211 P2d 736; Finn v. S. P. & S., 194 Or 288, 292, 241 P2d 876.
Defendants frankly ask that the former decision be reconsidered and overruled. However, that decision was the result of careful deliberation — the case was argued once and then reargued, the two dissenting opinions necessitated further consideration, and after the opinion was announced a petition for rehearing was considered and denied. While we agree with appellants that a court should not blindly adhere to a former decision that is manifestly erroneous, stability of the law requires that there be very cogent reasons for abandoning a former decision, particularly when it was between the same parties and on the same pleadings.
A number of defendants’ assignments of error (Nos. 5, 6, 7, 8 and 9) relate to the admission in evidence of testimony by various witnesses who knew the plaintiffs and their business, who had read the newspaper article at about the time it was published, and who, upon reading it, thought it applied to plaintiffs. Defendants’ argument here is twofold: First, [24]*24that the article was not ambiguous, and therefore that ■testimony was not admissible in any event to show its applicability to plaintiffs; and Second, that these witnesses were not shown to be specially qualified to draw an inference of its applicability to plaintiffs.
The arguments are foreclosed by the prior opinion. In that appeal, as here, defendants contended that the article was inapplicable to plaintiffs as a matter of law; but it was held that the question of applicability was one of fact, and for the jury. On the issue of whether the published article could reasonably have been interpreted as applying to plaintiffs, evidence was admissible that persons familiar with plaintiffs and their business did so construe it. The same evidence was offered on the former trial as is referred to in these assignments, and the same objections were made, but this court deemed the evidence competent and relevant and gave it weight in passing upon the propriety of the nonsuit. No special qualification was necessary, other than the witnesses’ familiarity with plaintiffs and their method of operation. Odgers on Libel and Slander 6th ed, pp 126, 559.
It is true that in State v. Mason, 26 Or 273, 275, 38 P 130, 26 LRA 779, the admissibility of such evidence was predicated upon the fact that the article was ambiguous. But the ambiguity in that case existed merely in the fact that the news story did not expressly name the person who was the subject of the article, and proof was therefore admissible to show the person to whom the article referred. The same situation exists in this ease.
Another group of assignments of error (Nos. 1, 2, 3 and 4) raises a similar question, but once removed. Evidence was admitted as to the statements of third persons with respect to the applicability to plain[25]*25tiffs of the published article. In each instance a witness was permitted to testify as to a conversation with another person, out of court, and not in the presence of either of the defendants, wherein the other person’s comments indicated that he interpreted the article as referring to plaintiffs. While a number of grounds of objection were stated in the lower court, the argument here is limited to the objection that the statements were hearsay.
The exclusionary force of the hearsay rule is not applicable when the extra-judicial statement of a third person is not offered to prove the truth of the utterance, but only to show that the statement was made. Where the mere fact that the statement was made is independently relevant, regardless of its truth or falsity (as, for example, to show the state of mind of the declarant, where that fact is in issue), such evidence is admissible. Wigmore on Evidence, 3d ed, §1789; 20 Am Jur 404, Evidence §457; 31 CJS 988, Evidence § 239; see Wayne v. Huber, 134 Or 464, 503, 291 P 356, 294 P 590, 79 ALR 1427.
The present evidence falls within the latter category. The fact that third persons thought the article referred to plaintiffs was in the nature of an ultimate fact, which was material to plaintiffs’ cause of action. The statements of those persons, although out of court, were relevant circumstances tending to prove their contemporaneous interpretation of the article. Thus in one of the instances plaintiff Robert Marr testified that as he approached a group of students on the morning following the publication, he was greeted with, tbe words, “Hi, slicker” or “Hi, racketeer.” This testimony was not offered to prove that he was a slicker or racketeer, or even that the speakers actually believed him to be, but merely to show that they interpreted the [26]*26article as having so described him. For snch purpose it was admissible.
Assignment No. 10 is directed to the exclusion of defendants’ exhibits “P” and “Q”. These were copies of pages of the Oregon Journal, a newspaper published in Portland, dated April 4, 1945, containing the following advertisement:
“RADIOS REPAIRED — 3-day service. Free pickup, delivery and estimates. OPA prices. Guaranteed work. 15 years exp. Call us now. MU 4530 or BR1986.”
Defendants state that the purpose of the offer was “to show that, in fact, plaintiffs were not the only persons who had advertised in this locality by identifying themselves by telephone number, only.” We take judicial notice that the phone numbers in the last-quoted advertisement were Portland phone numbers, and that the Oregon Journal has Salem circulation. It is not contended that those who placed the Oregon Journal advertisement were guilty of the practices condemned in defendants’ news story.
As mentioned previously, plaintiffs alleged and offered proof that they were the only ones who thus advertised a radio repair service: (1) in the city of Salem; and (2) at the time of publication of the article and for some time prior thereto. Defendants’ contention is that the news article was not limited as to the time or place of the practices mentioned, and therefore they should be permitted to prove advertisements in a Portland paper, some twenty months previously.
However, the article says that “Established radio dealers and repair plants in the city are becoming alarmed * * (Emphasis ours.) Furthermore it describes the source of the information as “* * * according to Ray Moore, 3720 Portland road [a Salem [27]*27address], who has had personal experience along this line;” and it speaks entirely in the present tense. We flunk the fair import of the article was to say that the practices therein mentioned existed currently in or about the city of Salem.
On the question of the applicability of the article to plaintiffs, evidence was admissible as to whether others were advertising in the described manner in or about the city of Salem and at or about the time of the publication. But evidence as to an advertisement in a Portland paper, of what was apparently a business located in Portland, over a year and a half previously, was too remote to be relevant.
Assignment of error No. 11 is based upon the trial court’s denial of defendants’ motion for a directed verdict. The issue thus raised is essentially the same as on the former appeal, and the various points now urged were all considered by the court at that time. The evidence is not less favorable to plaintiffs now than it was at the former trial, and under the former decision the case was one for the jury.
Assignments 12,13 and 14 assert error in failing to give instructions requested by defendants with respect to nominal damages. The first two requests Would have limited plaintiffs’ recovery to nominal damages only; and the third, as an alternative, would have told the jury that no more than nominal damages should be allowed unless “reasonable people acting upon inference, and not from guesswork, can derive therefrom that damage actually did thus result, and can further derive therefrom substantial data for fixing the amount.”
As to the first two requests, the evidence of damage to plaintiffs’ business was substantially the same at both trials. In both, plaintiffs’ actual books of account [28]*28were introduced, and they showed a marked decline in business after the publication. In the former opinion it was held that the jury could have found that the decline in business was a consequence of the libel and not a mere coincidence (196 Or at 29). There was no error in refusing to limit recovery to nominal damages.
As to the third request, the instructions given by the trial court amply covered the subject of nominal damages in the event that no actual damages were proved. The jury was told in no uncertain terms that:
“If # * * the rights of the plaintiffs were invaded by the publication of the article in question, but you cannot determine from a preponderance of the evidence that the plaintiffs suffered a loss of business as the result of such publication of said article, any verdict for the plaintiffs at your hands must be for only nominal damages.”
There was no error in refusing the request.
The next group of assignments of error (Nos. 15,16,17,18,19 and 20) relates to the matter of qualified privilege and fair comment on matters of public interest. The trial court withdrew the defense based on that theory (or theories) and refused requested instructions that would have submitted such issues. In doing so the trial court followed the law as determined on the former appeal (196 Or at 30-35), and no error was committed.
Assignment of error No. 21 complains of the refusal of an instruction that would have submitted to the jury the issue of truth as a complete defense. Under the last preceding group of assignments, defendants also argue that removal of the defense of qualified privilege or fair comment in effect negatived truth as a defense.
While truth is ordinarily a defense in an [29]*29action of libel (ORS 16.530(2)),
Assignment No. 22 complains of the refusal to give an instruction to the effect that plaintiffs were under a duty to use “due diligence” to minimize their damages, and that any failure to minimize damages should be taken into account by the jury in making an award.
Assuming, without deciding, that the duty to minimize damages applies to a libel action (as to which no authorities are cited), the requested instruction did not define “due diligence” and was therefore incomplete. Where the duty to minimize damages exists, it is only to use the care of a reasonably prudent person. Boyd v. Grove, 89 Or 80, 83, 173 P 310. Without a definition of “due diligence” the jury would have been left without a standard by which to measure plaintiffs’ conduct.
However, we are of the opinion that in any event there was no evidence that plaintiffs failed to exercise reasonable care to minimize their damages. On the day following the publication defendants went to the [30]*30Capital Journal office and talked to several people, including the reporter who wrote the article. They requested that the paper print a retraction or a story indicating that the original article did not apply to them, but their request was refused. Defendants assert that plaintiffs should have changed their method of advertising so as to avoid being classed with those at whom the article was aimed, but we do not think that was required under the circumstances.
The next assignment is based on two portions of the instructions given, wherein the trial court instructed the jury that the article was libelous per se. The objection is that it could not be libelous per se unless it showed on its face that it applied to plaintiffs. It is also urged that mention of the subject twice was prejudicial repetition.
The first ground is determined adversely to defendants in the prior opinion (196 Or at 29-30). As to the second, viewing the charge as a whole, we can find no undue repetition. The first mention occurred while explaining that proof of actual malice was unnecessary, and the second mention occurred while explaining that some damage was presumed.
The final assignment of error objects to an instruction given which defined the function of an “innuendo” in a libel action. The argument here again attempts to avoid the effect of the former opinion by asserting that “Words which are libelous per se do not need an innuendo, and words which need an innuendo are not libelous per se.”
In the former opinion it was determined that the article was libelous per se, even though extrinsic evidence was required to show its application to plaintiffs (196 Or at 39). The present instruction was merely an explanation of a portion of the complaint, and it [31]*31expressly told the jury that the innuendo could not be used to extend or change the language used. The trial judge said: “If the words complained of are not in fact actionable, no innuendo can make them so.” Since applicability to plaintiffs was one of the principal issues, an instruction on the subject of innuendo was not erroneous in the light of the former decision.
We have found no error, and the judgment is affirmed.
ORS 16.530 '<#****
“(2) The defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.”