In my view, the summary judgment should be reversed and the case should go to the jury only on the following single sentence: “When things go wrong, he [Orlando Cepeda] blames everybody but Orlando.” That is a statement of fact which accuses Cepeda of being a trouble maker. It is not a comment on his art. On this point, I believe the publisher should be put to his proof, and naturally the whole article should come into evidence to show the context in which it was written.

Other than as above indicated, I dissent. To make my point, I feel that I must set forth in an appendix the entire article (less pictures) with the portions of which he complains italicized.

It seems to me that on the whole the article is a lot of piffle. Counsel for appellee characterizes it as a “think piece.” I have trouble finding much thought in it.

I have lived long enough to believe-that the principal problem which the article created was not one for Cepeda, but was one for owner Stoneham and manager Dark. After the publication they must have had a great many players on their team who were quite envious of Orlando Cepeda because of the publicity which Cepeda had obtained in Look Magazine.

I do not believe that the libel law of California obligates us to police the general run of sportswriters’ fantasy and “horsefeathers,” of which the subject article is a part. I do not think the trial court is obligated to probe what Horace Stoneham and Alvin Dark are thinking or to find out whether Cepeda is or is not in the doghouse. I do think perhaps we do have a possible Little League libel here in the single statement which I have-quoted above.

Normally, we should not comment on damage at this juncture, but I do think that possibly the thing that may have led the trial judge to overlook the single statement of: “When things go wrong, he blames everybody but Orlando,” is the wholly out-of-reason prayer for damages; in the amount of one million dollars. In my view, there is a good argument that, no possible damage of $10,000, our jurisdictional minimum in diversity suits, could be sustained and that the case, therefore, should be sent back to the state courts.

APPENDIX

Look’s article of May 21, 1963. (Portions asserted to be libel are italicized.)

ORLANDO CEPEDA

Can he slug his way out of the doghouse ?

By Tim Cohcme Sports Editor of Look ORLANDO CEPEDA. The name seems to need a Don in front of it or a cigar band around it. Instead, it wears the sale tag: “First-class first baseman, San Francisco Giants, tradable for top-notch pitcher and other considerations.”

*874 . Until the trading deadline — midnight, June 15 — a National League team may decide it can better itself by giving the Giants all they want for Cepeda. The possibility is scant. Nevertheless, it is astonishing that Cepeda, power hitter and slick fielder on a pennant winner, should be considered expendable. And expendable he has been since the end of last season.

1 The big fellow, whom they call “Chico" and “The Baby Bull,” has for some time been in disfavor with owner Horace Stoneham, Manager Alvin Dark and the club’s cue takers. The counts against him:

1) He doesn’t produce the crucial hit often enough. 2) He is not a team man. S) When things go wrong, he blames everybody but Orlando. It) He does not rebound and take it out on the opposition. 5) He is a hardy holdout every year.

I- A hot and loud bat can drown out the strains of discord, and Cepeda may slug his way back to grace. Or the active bat might impress Stoneham principally as a boost to Orlando’s market value. For Cepeda’s doghouse status traces less to unfavorable interpretation of his batting statistics than to his overall performance, which Stoneham and the rest of the Giants’ hierarchy deem temperamental, uncooperative and underproductive.

' Unlike most owners, Horace Stoneham is a substantially knowledgeable baseball man. His has been the decisive voice in Giant trades that have yielded high returns. His record in dealing with managers, players and other employees bespeaks a patience and loyalty uncommon among magnates. But when one or a combination of reasons finally turns him against a man, Stoneham can be as unshakable as old Coogan’s Bluff.

Evidence of front-office disenchantment with Cepeda has been piling up ever since the Giants’ near miss in last October’s seven-game World Series with the New York Yankees. From November 21 through December 15, when interleague trades without intraleague waivers were permissible, the Giants talked with American League teams about Orlando.

“We would dearly have loved to have him,” says one executive in the American League. “Trouble is, to get him we would have had to give them most of our ball club.”

“Cepeda,” reports another, “was available to any American League club willing and able to give up the big pitcher and a few other things, say a minor-league player valued at $100,000. Nobody felt they could afford to give up the pitcher without weakening themselves.”

After the interleague deadline, the Giants turned to National League clubs, but the same roadblocks barred action. So the prospects of making a suitable deal for Cepeda are not good. In baseball, however, situations change rapidly. The falloff of a star or the sudden rise of a youngster can almost overnight transform a team’s trading approach.

Although trade talks involving Cepeda were unpublicized, his soured situation with the Giants was emphasized when they sent him his contract. In 1962, his salary was estimated at $46,500, a $16,-500 increase over 1961, when he knocked in 142 runs, hit 46 home runs and averaged .311. The Giants went on to win the 1962 pennant and make a strong World Series showing. Under such conditions, raises for all are customary. But the club asked Cepeda to take a cut, reportedly deep, then offered him the same salary as in 1962. Orlando balked.

Finally, unable to make a deal, the Giants took themselves off a somewhat awkward hook by granting Cepeda a token raise of $1,000. Orlando, having won a point of pride, predicted that if he had as good a season in 1963 as in 1961, Stoneham would have to do handsomely by him.

Manager Alvin Dark rates his players by a plus-and-minus system. “Our players get a plus anytime they do a little extra to help win a game. Anytime a player misses a sign or fails to drive in a runner from third with less than two out, in a key spot, he’s charged with a *875 minus.” Single pluses are given for good effort — homers, sacrifices, squeeze plays, key hits, good fielding plays — in the early going. Extra pluses are awarded for late-inning performance that helps to tie or win a game.

Shortly before Cepeda signed, Dark revealed that, by this system, Willie Mays, the brilliant center fielder, and third baseman Jimmy Davenport, rated one-two in 1961 and 1962. Despite a 1962 record of 35 homers, 114 runs-batted-in and a .306 average, Cepeda was, in Dark’s words, “terribly minus.” Pressed on this, Dark said, “I’m answering because you asked, but Cepeda had 40 more minuses than pluses. A terrible record,” he added, “especially for the last half of the season.”

“I don’t know what Dark is talking about in the plus and minus business,” said Cepeda. “What about the first half of the season? My record speaks for itself.”

Orlando’s opinion is not the organization’s. The Giants had to make a tearing stretch run to tie the Dodgers in the regular season. They had to do it again to win the playoff, two out of three. The Giants feel that if Cepeda hadn’t failed to make the big hit so often, their job would have been far easier. They also feel that the failure of Orlando’s bat to bang, except in the sixth game, cost them the World Series.

Dark, as a shortstop on championship Boston Braves and New York Giants teams in the 40’s and 50’s, was a completely selfless, dedicated competitor. And he expects dedication. By a fine here and a statement, direct or oblique, there, he intimated during both the 1961 and 1962 seasons that Cepeda did not help the team as much as he should have. After Dark’s predecessor, Bill Rigney, took over the Los Angeles Angels in 1961, he stated that he never had been able to make a team player out of “The Baby Bull.”

The atmosphere that has consequently developed suggests that if Orlando ever does fulfill his potential, it will be for another team. The Giants may well believe this, which perhaps explains their effort to deal him into the American League.

Indispensable to an understanding of the Cepeda controversy is Willie Mays, When the Giants moved from New York to San Francisco in 1958, Mays was a long-established superstar; Cepeda, a rookie of resplendant possibilities, but untried. Mays had made his reputation, however, in New York, where some writers were so bold as to compare him as an all-around center fielder with Joe DiMaggio, a San Francisco product. So fans extended Mays a cool hand, looked around for a No. 1 hero uncontaminated by the Polo Grounds and installed the heralded Cepeda.

Cepeda strengthened his position with a fast start. Mays, meanwhile, felt strange in the new city, sensed his tepid reception and was harried by personal problems. Even when he hit .347 that, first year in Seals Stadium (Candlestick Park was not ready until 1960), Willie was not himself. In 1961, strangeness and personal problems behind him, he began to play like the old Mays. His magnificent contributions, especially in the crises, to the 1962 pennant, San Francisco’s first in the big leagues, finally won him full, warm acceptance.

Meanwhile, Cepeda’s five-year performance was far from a flop. Totals covering 1958 through ’62 reveal him a definite but respectable second to Willie in all batting departments: hits, 943-922; doubles, 173-163; triples, 36-16; home runs, 181-157; runs, 612-471; runs-batted-in, 567-553; runs produced (runs plus runs-batted-in, minus home runs), 998-867; total bases, 1,731-1,588; slugging percentage, .5S4-.532; batting average, .318-309; stolen bases, 119-75. These figures suggest that though Cepeda is no Mays and may never be, he remains an exceptionally strong offensive factor.

Statistics or no, Cepeda probably did not realize that Mays, and not he, really was the big man on the Giants — until the team made its first visit to its old New York home, the Polo Grounds, to meet the *876 new tenants, Casey Stengel’s Mets. Like all of the Giants, Cepeda was received warmly, but his welcome was placid compared to the thunder reserved for Mays. Says one Giant executive, “Orlando didn’t get over that for quite a while. It helped pave the way for what happened to him in the second half of the season.”

While Cepeda concededly poses the Giants a personality problem, baseball is full of personality problems, and several points can be itemized in Orlando’s defense.

Ever since Pedro Zorrilla discovered the boy on the Santurce, Puerto Rico, team in the early 50’s and recommended ^him to the Giants, Cepeda has been burdened by an all but crushing buildup. After his first season in San Francisco, he evoked over-enthusiastic comparisons with Jimmy Foxx, Rogers Hornsby, Josh Gibson (king of Negro hitters and catchers in the era before organized baseball admitted the colored player) and his own father, Pedro Cepeda, who rivaled Gibson as a hitter.

As a fielder, Orlando is a first baseman strictly. He handles the glove well, especially on the throw into the runner, ranges recklessly for foul flies and has a good arm. As a base runner, he is swift for his size, but unstable. From 1959, through 1961, he was often played in the outfield, where he was very average, and even for a few games at third base, where he was a sideshow. He was not happy about the juggling, but had to go along. The shifts were engineered to make room at first base for Willie McCovey, who in 1962 more or less settled in the outfield. McCovey’s sometimes authoritative bat would give the Giants some first-base protection, if they traded Cepeda.

Cepeda’s biggest handicap has been too much baseball. For about eight years, he played around the calendar, in the States and in Puerto Rico, where he is a national hero. Orlando is young and ox-strong, but the schedule wore him down.

Physical weariness contributed to his batting falloff in the second half of last season. He stands well back in the box, away from the plate, like Hornsby, and strides into the ball. When he is tired, his form becomes disarranged, and he ends up with a disproportionate number of pop-ups and strikeouts, especially when he tries to overpower the outside pitch.

At the Giants’ request Cepeda did not play in Puerto Rico last winter. He did some gymnasium work and reported for spring training at 227, seven pounds over his normal playing weight. The Giants believe he would be more effective at 210 to 215, especially if he can melt the pounds off his hips and butt. Whatever his weight, he should benefit from the winter’s rest.

It is not imperative that Cepeda mature sufficiently to approximate a team player. He could remain primarily the virtuoso of the long ball and still be as productive as the Giants think he should be. When he first came up, his counselor was Tom Sheehan. This veteran Giant scout and troubleshooter (and manager during part of the 1960 season) is known as “The Great White Father of the Carribbean,” because of the many players he discovered in that area. Sheehan’s advice to Orlando is as sound today as it was when first given: “If you keep a level head and concentrate on the game, you will be a great player.”

Note: The following “cutlines” appear opposite pictures of Cepeda: