Aku v. Lewis

• Decision Date: 13 November 1970
• Docket Number: No. 4927,4927
• Citation: 477 P.2d 162,52 Haw. 366
• Parties: , 50 A.L.R.3d 1300 Earle E. AKU, Plaintiff-Appellant, v. Hal LEWIS, aka J. Akuhead Pupule, Jim Lathrop, and Pacific Broadcasting Co., Inc., Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 162

477 P.2d 162

52 Haw. 366, 50 A.L.R.3d 1300

Earle E. AKU, Plaintiff-Appellant, v. Hal LEWIS, aka J. Akuhead Pupule, Jim Lathrop, and Pacific Broadcasting Co., Inc., Defendants-Appellees.

No. 4927.

Supreme Court of Hawai'i.

Nov. 13, 1970.

Syllabus by the Court

1. The inferences to be drawn from the underlying facts alleged in the materials submitted by the parties and considered by the court in connection with a motion for summary judgment under H.R.C.P. Rule 56(c) must be viewed in the light most favorable to the party opposing the motion.

2. A qualified privileged occasion arises when the author of the defamatory statement reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty.

3. A radio personality's name may have substantial commercial value for advertising purposes which exists apart from his services as an announcer.

4. The exclusive use by the first appropriator of a name with this value will be protected.

5. A qualified privilege may be abused by the use of words not reasonably necessary to protect the particular interest for which the privilege is given.

6. If the defamatory matter is totally irrelevant to the interest deserving protection or wholly unwarranted by any inquiry made, the court may declare the privilege lost as a matter of law.

7. A publication is defamatory on its face when imputing to one the commission of a larcenous crime, such as false pretenses.

8. If one speaks without due care under the circumstances so that his words are heard by parties having no recognized interest his publication may be excessive and an abuse of the occasion.

9. Where the defamed person is not a public official, the standard of care required of a defaming publisher is that of reasonable care, and his declarations will not be privileged if made unreasonably with regard to the grounds he had for believing in their truth.

10. In considering the validity of the granting of summary judgment under H.R.C.P. Rule 56(c), the reviewing court must determine whether any genuine issue as to a material fact was raised and whether the moving party was entitled to a judgment as a matter of law.

D. N. Ingman, Honolulu, for plaintiff-appellant.

James P. Conahan, Honolulu (Moore, Torkildson & Schulze, Honolulu, of counsel), for defendants-appellees.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

KOBAYASHI, Justice.

This appeal by plaintiff, Earle E. Aku, comes from the trial court's entry of summary judgment under H.R.C.P. Rule 56(c) ¹ upon motion by defendants, Hal Lewis, also known as J. Akuhead Pupule, Jim Lathrop and Pacific Broadcasting Co., Inc. (hereinafter referred to as KGMB).

The complaint alleged that defendants had maliciously published to its radio and television audience false and defamatory statements about the plaintiff, indicating that he was representing himself as defendant Lewis in an attempt to defraud the public.

Defendants' amended answer in part claimed the statements were qualifiedly privileged. This assertion of privilege was twofold: that the statements constituted 'fair comment and criticism' upon a matter of public interest by a public person and were 'constitutionally privileged'; ² and that the publications were business communications made in defendants' interest, and the interest of the listening audience and general public.

Lewis and KGMB counterclaimed that Earle E. Aku deliberately misappropriated Lewis' stage name, 'J. Akuhead Pupule', known popularly as 'Aku', by using language intended to convey the impression that radio personality 'Aku' was connected with plaintiff's fund raising activities.

The trial judge held defendants' publications, even if libelous, qualifiedly privileged as business communications. Finding no genuine issue of abuse of this privilege, summary judgment was granted. We reverse, there being several issues of fact as to abuse. The essential facts follow.

In January 1968, plaintiff Earle E. Aku, employed by the Honolulu Police Department for sixteen years, was attempting to raise funds for the Kaneohe Bantam Football Team of the Hawaii Pop Warner Football League. A resident of the Kaneohe area, Oahu, Earle E. Aku served as the team's head coach in his spare time. He had organized and coached the team for four years.

To raise money for team expenses and a planned trip to the West Coast, plaintiff contacted William W. Carter, an experienced promoter of benefit variety shows. Carter agreed to stage a one night show in April 1968 featuring professional entertainers. All ticket sales were handled by Carter and several staff employees through telephone solicitations to approximately 2,000 Kaneohe residents. Because of plaintiff's respected reputation within the local community, after introducing the show and its purpose, the callers frequently mentioned that 'Earle Aku' coached the team. Carter instructed all callers to always use plaintiff's full name and to identify him as coach. To those responding, Carter mailed show tickets and envelopes in which to remit payments.

On February 1, 1968 an unidentified employee of defendant KGMB's newsroom staff received a telephone call asking if 'Aku' was in any way supporting a fund raising effort to send a football team to the mainland. 'Aku' mentioned in the telephone call referred to defendant Hal Lewis, a well-known radio personality of KGMB whose trade name 'J. Akuhead Pupule' in common parlance was 'Aku'.

Later on that same day, Robert W. Sevey, news director of KGMB received a telephone call from one who said he had been contacted by a solicitor 'who used Aku's name.' ³ The inquiry again was whether radio personality 'Aku' was supporting the benefit program. Sevey told the caller he did not know, but would check with Lewis. This Sevey did, Lewis denying any connection. Sevey received no other inquiries nor investigated the matter further prior to the 6:00 p. m. television newscast that evening.

Shortly before defendant Jim Lathrop reported the 6:25 p. m. sports news, he was informed by Sevey 'that the station had been receiving calls from people who had been solicited for funds by someone using Aku's name but that Aku had never heard of it.' ⁴ Having received no inquiries himself and relying completely on this information given him by Sevey, Lathrop, in his television broadcast, allegedly made a defamatory ad-lib remark concerning the plaintiff. No taped recording of the program was made.

A controversy exists as to Lathrop's exact words. Plaintiff and Carter, both of whom viewed the program, allege they heard Lathrop say something to the effect that, 'There is a man of ill-repute who is posing as Aku, raising funds for a football team. This is a fraud, and not true, so watch out.' ⁵ Defendant Lathrop contends he said 'that somebody representing himself as KGMB's Aku is attempting to raise funds and * * * Aku is not raising funds for anything.' ⁶

In addition to Lathrop's alleged remarks, plaintiff contends defendant Lewis stated on his February 1, 1968 morning radio show that 'he was the only Aku on this island and whoever was using the name Aku was a fraud as he, Lewis, had nothing to do with the show.' ⁷ Defendant Lewis denied ever mentioning the plaintiff or his activities at any time. Nonetheless, after February 1, some would-be purchasers returned their tickets to Carter, while others failed to remit any payment.

Defendant KGMB makes no contention that its responsibility is any different than that of its two spokesmen, Lewis and Lathrop, and we shall proceed on the assumption that the relationship between the announcers and the defendant corporation is immaterial.

The questions on appeal in determining the propriety of the summary judgment below are: (1) the nature and applicability of defendants' assertion of a qualified privileged occasion to defame plaintiff; and (2) assuming the occasion so privileged, whether the record presents a material factual issue of abuse of privilege.

In considering the above questions, the inferences to be drawn from the underlying facts alleged in the materials submitted by the parties in connection with the motion for summary judgment must be viewed in the light most favorable to plaintiff, Earle E. Aku. Abraham v. S. E. Onorato Garages, 50 Haw. 628, 631, 446 P.2d 821, 824 (1968).

I. DEFENDANTS' CLAIM OF QUALIFIEDLY PRIVILEGED OCCASION

A qualifiedly privileged occasion arises when the author of the defamatory statement reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty. White v. Nicholls, 44 U.S. (3 How.) 266, 290, 11 L.Ed. 591 (1845); Harrison v. Bush, 119 Eng.Rep. 509, 512 (1855); Toogood v. Spyring, 149 Eng.Rep. 1044, 1049 (1834).

The interest or duty of the recipients is essential to the privilege. If the person or persons to whom the communication is addressed have no recognized interest in the statement, there is no privilege. Pecue v. Collins, 204 App.Div. 142, 144, 197 N.Y.S. 835, 837 (1923); cf. Lathrop v. Sundberg, 55 Wash. 144, 148, 104 P. 176, 177 (1909). ⁸

A radio personality's name may have substantial commercial value for advertising purposes which exists apart from his services as an announcer. Uproar Co. v. NBC, 8 F.Supp. 358, 361 (D.C.Mass.1934). The exclusive use by the first appropriator of a name with this value will be protected. Stout v. Laws, 37 Haw. 382, 385 (1946).

Defendant radio star Hal Lewis' trade name, 'J. Akuhead Pupule', was commonly spoken of in shorter form as 'Aku'. In its abbreviated form the trade name 'Aku' had substantial commercial value and was a protectable interest.

Although no...