(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.
*655I 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 facts of the instant case point to only one conclusion — that Shopko used a reasonable means to convey the message not to accept the Utecht credit card — then the judge may decide the issue of abuse of a qualified privilege. Id.
Shopko did not abuse the qualified privilege it had through excessive publication. This conclusion follows from an understanding of the excessive publication doctrine:
§ 604. Excessive Publication
One who, upon an occasion giving rise to a conditional privilege for the publication of defamatory matter to a particular person or persons, knowingly publishes the matter to a person to whom its publication is not otherwise privileged, abuses the privilege unless he reasonably believes that the publication is a proper means of communicating the defamatory matter to the person to whom its publication is privileged.
Id., § 604. The comments to this section are especially important in determining the reasonability standard. (In the present case, the reasonableness of the posting of the notice by Shopko is to be ascertained.) Comment a suggests:
a. Ordinarily, a privilege is abused by speaking defamatory words in the presence of persons whose knowledge of them is unnecessary to the protection of the interest in question. However, this is not true when the publication to those persons is reasonably incidental to the communication of the defamatory matter to the person whose knowledge is reasonably believed to be necessary or useful for the protection of the interests. In many cases, the communication, to be effective, must be made at a given time and place even though third persons are present who are likely to overhear it. * * *
Id., comment a (emphasis supplied).
Comment b explores further the reasona-bility standard:
b. Often the only practicable means of communicating defamatory matter involves a probability or even a certainty that it will reach many persons whose knowledge of it is of no value in accomplishing the purpose for which the privilege is given. In this case, the publication is not excessive or an abuse of the privilege, if the importance of the interest involved, the gravity of the harm threatened to it and the inconvenience of any other means of communication make the publication reasonable. * * *
One privileged to publish defamatory matter may, without abuse of the privilege use a method of communication that involves an incidental publication of the defamatory matter to persons to whom he is not otherwise privileged to publish it, if the method, although not the only way in which the information can be effectively communicated, is customary and sanctioned by business or other necessity.
Id., comment b (emphasis supplied).
The facts of the present case demonstrate the reasonability of Shopko’s actions. Mrs. Utecht called Shopko, asking them not to accept the lost credit cards. In a deposition, Mrs. Utecht related the information she told Shopko:
Q Did you know anybody at Shopko?
A Personally?
Q Yes.
A No.
Q Okay. So, you just called up, I take it. Did you get Mr. Davis right away?
A I don’t remember.
Q Okay. Well, tell me what you told Mr. Davis?
A The same as I told the other stores, our cards had been lost, not to accept any charge on our card.
*656Q Okay. What did this Mr. Davis— the person you talked to — indicate when you told him that?
A “Okay.”
Q Okay. Again the purpose for contacting Shopko, the same reason you contacted the other stores?
A Yes.
Q [T]hat was the basic idea why you contacted them, so they didn’t accept it?
A Yeah.
Shopko used a means it thought reasonable to communicate the fact of plaintiff’s credit card loss: a notice on the cash register. To be sure, Shopko might have employed some other means of conveying the information, perhaps by putting the information on a clipboard, or by displaying only a credit card number. But these methods do not convey the message so clearly, quickly or efficiently to cashiers as the method chosen. If the Utechts were serious about not having their credit card accepted, one cannot fault Shopko for following through on this request. Its method would work.
The lower court judge had all the facts and circumstances of the case before him when he granted summary judgment to respondent. The parties do not debate the content of the sign, nor is the positioning of the sign in dispute. Absent any controversy as to the facts of this case, the court’s determination — that the qualified privilege was not abused — is justified. The facts support only one conclusion: Shopko complied with a customer request in a reasonable commercial manner by posting the cashier notice. The lower court reached this conclusion after a full review of the facts before it. This court should affirm the judgment of the lower court.