Utecht v. Shopko Department Store

SCOTT, Justice.

Plaintiff Robert Utecht appeals from a summary judgment in favor of defendant Shopko 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 1979 Kathy 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 1979 plaintiff’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 *654(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.