RUTA FOU and TOGAIIA FOU, P1aintiffs,
v.
TALOFA, INC. dba TALOFA VIDEO, Defendant.
High Court of
Trial Division
CA No. 62-97
Before
Counsel: For Plaintiff, Katopsu
T. Ainu`u
For Defendant,
Aitofeie T. Sunia
[1] Statements which would typically be considered
slander constitute libel when said in association with a libelous act.
[2] Libel may occur where a defamatory writing
is read aloud.
[3] Posting defamatory material so that it is
viewable by third persons constitutes publication.
[4] Publication of a defamatory statement can be
done intentionally or negligently.
[5] A communication is defamatory if it so harms
the reputation of another as to lower him in the estimation of the community or
to deter third persons from associating or dealing with him.
[6] Where store posted a patron’s properly
drafted, but out-of-state, check for its employees to see as “unacceptable”,
where check was placed in public view, and where store employees told others
that it was posted because of its “unacceptable” nature, the obvious
implication was that the drafter had drawn the check on insufficient funds and
thus such actions constituted libel.
[7] A written or printed imputation of any crime
of moral turpitude or punishable by confinement is libelous per se.
[8] Where libel per se is shown, actual damages
need not be proven. [2ASR3d133]
OPINION AND ORDER
Plaintiffs
Facts
On
Ruta learned of this situation from a friend at another store several
months after she originally tendered the check.
She immediately contacted Talofa Video, and an employee confirmed that
the check was still displayed. Ruta
retrieved the check and, through counsel, demanded an explanation and apology
from Talofa Video. Talofa Video’s
manager, Lo Shi-Kai, explained in his letter of
Discussion
Defamation
by means of libel is statutorily defined:
Defamation
is effected by:
(1)
libel which is a false and unprivileged publication by writing, printing,
picture, effigy, or other fixed representation to the eye which exposes any
person to hatred, contempt, ridicule, or obloquy which causes him to be shunned
or avoided or which has a tendency to injure him in his occupation. [2ASR3d134]
[1-5]
A.S.C.A. § 43.5201. Oral words which would typically be considered slander
constitute libel when said in association with a libelous act. “[I]t is generally held that it is a
publication of a libel to read a defamatory writing aloud. This might suggest
that the distinction is one of embodiment in some more or less permanent
physical form, and is frequently so stated.”
Talofa Video asserts that it posted the check as a
“teaching device” to its employees not to accept off-island checks. We view this rationalization to be less than
compelling, and certainly not exculpatory of Talofa Video’s actions. A clearly worded notice to its employees not
to accept a check drawn on an off-island bank could have easily sufficed.
Worse perhaps, Talofa Video shirked its responsibility
to issue an apology. Instead of assuming
accountability for its actions, Talofa Video insulted the Fous’ intelligence by
its rather dismissive explanation of its actions, terming them “a
misunderstanding.” First, Talofa Video
seemed to suggest that its wrongdoing was Ruta’s fault for having written a
check on an “off-island” bank.[1] Second, Talofa Video implied that its actions
were justified because of financial inconveniences associated with accepting an
“off-island” check.[2] Third, Talofa Video contended that its
actions were reasonable because even
though the Fous’ check was displayed to the public it was not displayed for the
public. Moreover, Talofa Video could
have easily mitigated the harm at anytime by taking the check down after it was
flipped over or by refraining from telling patrons that the check was
“unacceptable.” [2ASR3d135]
Talofa Video then essentially dismissed the Fous’
grievance by suggesting that the Fous misconstrued its benign motives. Talofa Video excused its conduct by stating
that “there was never a question of [the check’s] not being ‘good,’ only of
having been off-island.” But we cannot
look into the mind of Taiofa Video’s manager and neither could the public. The court must use a reasonable person
standard to assess Talofa Video’s actions.
Patrons who saw the check on display would have probably have thought that
the Fous’ check was returned due to insufficient funds. This is the logical conclusion, one which
Talofa Video reaffirmed when telling customers who inquired that the check was
displayed as an example of an “unacceptable” check. No notation was on the check referring to its
“off-island” status, and it is not clear to the court that the employees
themselves were sure exactly why the check was posted. Apparently, the check had been displayed for
a lengthy period before an employee finally flipped it over to post telephone
numbers on the backside.
Talofa Video seeks to draw the specious distinction
between the check’s being displayed for the public, not to the
public. Again, this excuse rings
hollow. Others cannot look into a
defendant’s mind to discern intent, and so we must look to an external standard
to judge a defendant’s action. Even if
the check was not intended “for the public,” it was still in plain view for the
public to see. Even though Talofa Video
claims that it “was never a question of [the check’s] having been ‘good,’” this
is still the implication given.
[6] We
conclude that Talofa Video’s conduct of posting the check, in conjunction with
the check’s written nature and its employees stating that “the check is
unacceptable,” constitutes libel.
[7-8] Since
the implication was that Ruta committed a crime — the writing of a bad check —
the libel per se rule applies in this case.
“[A] written or printed imputation of any crime [of moral turpitude or
punishable by confinement] is libelous [per se]. Restatement (Second) of Torts § 569 comment d. Even though we could easily infer harm to the
Fous’ reputation, we need not be concerned with proof of actual harm.
The record is devoid of evidence of any privilege or
other defense. Thus, for the reasons
stated above, we conclude that Talofa Video’s actions were libelous and damage
to the Fous need not be proved. We hold
Talofa Video liable to the Fous for its defamatory conduct in the amount of
$6,000. [2ASR3d136]
Order
Talofa Video shall pay $6,000 in damages plus actual costs suit to the
Fous.
It is so Ordered.
**********
[1] Manager La Shi-Kai wrote “Talofa Video, like most
businesses in
[2] Manager Lo Shi-Kai claimed “Talofa Video, like most
businesses in