Utecht v. Shopko Dept. Store

• Decision Date: 08 October 1982
• Docket Number: No. 82-166.,82-166.
• Citation: 324 N.W.2d 652
• Parties: Robert UTECHT, Appellant, v. SHOPKO DEPARTMENT STORE, Respondent.
• Court: Minnesota Supreme Court

324 N.W.2d 652 (1982)

Robert UTECHT, Appellant, v.SHOPKO DEPARTMENT STORE, Respondent.

No. 82-166.

Supreme Court of Minnesota.

October 8, 1982.

Willenbring, Lickteig & Dahl and Timothy D. Clements, Cold Spring, for appellant.

Donohue, Rajkowski & Hansmeier, St. Cloud, for respondent.

Considered and decided by the court en banc without oral argument.

SCOTT, Justice.

PlaintiffRobert Utecht appeals from a summary judgment in favor of defendantShopko Department Store in this suit for libel.The primary issue on appeal is whether there are genuine issues of material fact concerning the defamatory nature of the communication and Shopko's privilege to publish it.We conclude that there are and, therefore, reverse and remand for further proceedings.

In early July 1979Kathy Utecht, plaintiff's wife, lost her checkbook and several credit cards including a Shopper's Charge card.She called various local retailers, including Shopko, and informed them of the loss in hopes of preventing unauthorized use of the credit cards.In August 1979plaintiff's brother-in-law informed him that while in the check-out lane in Shopko, he had observed a notice posted on the cash register reading "Shopper's Charge — Robert Utecht — Do Not Accept."Plaintiff called Shopko and demanded immediate removal of any such signs.He subsequently went to the store where he found one sign, handwritten in blue ink on a 3 inch by 5 inch index card, in a trash barrel.

Angry and upset about possible damage to his reputation, plaintiff sought damages in conciliation court.He was awarded $1,000 and Shopko removed the case to county court.Plaintiff then filed a complaint alleging damages in excess of $50,000.Upon motion, the county court transferred the action to the district court because the claim exceeded its jurisdictional limit.Shopko moved for summary judgment.The motion was denied.On the morning of trial Shopko renewed its motion and, this time, the trial court granted it on the dual grounds that the communication was not defamatory as a matter of law and that it was privileged as a matter of law.

We have often cautioned that summary judgment is not a substitute for trial.2 J. Hetland & O. Adamson, Minnesota Practice, Civil Rules Annotated 563 (1970).In libel cases a publication may be defamatory on its face; or it may carry a defamatory meaning only by reason of extrinsic circumstances.The question whether a claimed defamatory innuendo is reasonably conveyed by the language used is for the court to determine.Marudas v. Odegard,215 Minn. 357, 10 N.W.2d 233(1943).If the words are capable of the defamatory meaning, it is for the jury to decide whether they were in fact so understood.Gadach v. Benton County Co-op Association,236 Minn. 507, 53 N.W.2d 230(1952).We cannot agree with the trial court that the notice posted by Shopko was not reasonably susceptible of a defamatory meaning.The circumstances in which the notice was seen by the public necessarily prompted speculation as to why the card was not to be accepted.Loss or theft are possible explanations but poor credit is an at least equally likely alternative.The innuendo that one is a deadbeat is clearly defamatory and a jury should determine whether that meaning was the one actually conveyed.

Shopko argues that any fact issue regarding the defamatory nature of its notice is nonetheless not material because the communication was privileged.There are two types of privileges, absolute and qualified.Both are potentially applicable here.The claim of absolute privilege is based on plaintiff's consent to the publication.While plaintiff concedes that he consented to Shopko's informing its cashiers not to accept his credit card, it is undisputed that he did not expressly agree to the method used.There is, therefore, a factual question for a jury as to whether the publication was within the scope of the consent, i.e., whether Shopko reasonably interpreted plaintiff's request.The result is the same with respect to the claim of qualified privilege.It constitutes a defense only when the communication is made in a reasonable manner and for a proper purpose.Hebner v. Great Northern Railway Co.,78 Minn. 289, 80 N.W. 1128(1899).Plaintiff here alleges that the method used to communicate information regarding the credit card to the cashiers was unreasonable under the circumstances because it excessively published the information.The question whether a qualified privilege has been defeated by abuse is one for the jury.Stuempges v. Parke, Davis & Co.,297 N.W.2d 252(Minn.1980).

Plaintiff also contends that the trial court erred by denying his motion to amend the complaint to assert a claim for punitive damages.Whether to allow an amendment is committed to the trial court's discretion.Dale v. Pushor,246 Minn. 254, 75 N.W.2d 595(1956).Minn.Stat. § 549.20(1980) provides that punitive damages are allowable in civil actions "only upon clear and convincing evidence that the acts of the defendant show a willful indifference to the rights or safety of others."All of the discovery evidence before the court indicates that Shopko was, at most, negligent.The trial court, therefore, did not abuse its discretion by refusing to permit the amendment.

Affirmed in part; reversed and remanded in part.

COYNE, J., took no part in the consideration or decision of this case.

PETERSON, Justice (dissenting).

I respectfully disagree with the majority opinion and would affirm the grant of summary judgment.

Two alternative findings supported the lower court's disposition of the case through summary judgment.The lower court found the posted cashier's notice ("Shopper's Charge — Robert Utecht — Do Not Accept") not capable of a defamatory meaning.Although I am inclined to agree with the lower court — the notice does not seem capable of bearing the defamatory meaning attributed to it by plaintiff — I defer to the majority on this issue.A jury should decide what meaning is actually taken.

More important to this dissent is the issue of abuse of a qualified privilege.Both parties and the lower court agreed: Shopko had a qualified privilege to communicate the loss of plaintiff's credit card to its cashiers.As the majority points out, plaintiff alleged abuse of the qualified privilege through excessive publication.The lower court found no abuse of the qualified privilege.The majority would allow the jury to consider the issue.

I dissent from the majority on this point: the lower court could rule as a matter of law that no abuse of the qualified privilege occurred through excessive publication.The Restatement (Second) of Torts§ 619(2)(1977) suggests the rule: "Subject to control of the court whenever the issue arises, the jury determines whether the defendant abused a conditional privilege."But importantly, the comments to the subsection add: "These questions are for the jury to determine unless the facts are such that only one conclusion can reasonably be drawn."Id., comment on subsection (2)(emphasis supplied).If the...