McCune v. Neitzel

• Decision Date: 13 July 1990
• Docket Number: No. 88-552,88-552
• Citation: 235 Neb. 754,457 N.W.2d 803
• Parties: Robert L. McCUNE, Appellant and Cross-Appellee, v. Rose NEITZEL, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 803

457 N.W.2d 803

235 Neb. 754

Robert L. McCUNE, Appellant and Cross-Appellee, v. Rose NEITZEL, Appellee and Cross-Appellant.

No. 88-552.

Supreme Court of Nebraska.

July 13, 1990.

Syllabus by the Court

1. Evidence: Appeal and Error. In an action at law, the Supreme Court on appeal views the evidence in the light most favorable to the prevailing party. All inferences which may be drawn from the evidence must be drawn in favor of the prevailing party.

2. Jury Instructions: Appeal and Error. Absent plain error indicative of a probable miscarriage of justice, failure of counsel to object to jury instructions after they have been submitted for review will preclude raising an objection to those instructions on appeal.

3. Libel and Slander: Actions. Whether a statement is actionable per se is a matter of law for the court.

4. Libel and Slander: Juries. In a slander per se case where the statement is clear and unambiguous, the issue the jury is to determine is not whether a statement is defamatory but whether the statement was made by the defendant.

5. Trial: Evidence: Appeal and Error. It is within the trial court's discretion to admit or exclude relevant evidence which is otherwise admissible, and such rulings will be upheld on appeal absent an abuse of discretion.

6. Witnesses: Impeachment: Prior Statements. A witness may not be impeached by producing extrinsic evidence of collateral facts to contradict the first witness' assertions about those facts. A witness' prior inconsistent statement may be used to impeach the witness only on matters relevant to and otherwise admissible on some issue in the case tried.

7. Pretrial Procedure: Pleadings: Evidence. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury.

8. Trial: Pleadings: Proof: Appeal and Error. In order to preserve error before the Supreme Court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury.

9. Directed Verdict. In order to sustain a motion for directed verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion.

10. Directed Verdict. In considering the evidence for the purpose of a motion for directed verdict, the party against whom a motion is made is entitled to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence in favor of the party against whom the motion is made, the case may not be decided as a matter of law.

11. Directed Verdict. On a motion for directed verdict or judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the material and relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences which can reasonably be deduced therefrom.

12. Libel and Slander: Words and Phrases. Malice in the common-law sense of the term means hate, spite, or ill will toward the person about whom a statement has been published.

13. Libel and Slander: Proof: Pleadings. Proof of common-law malice is at issue only when truth or a conditional privilege has been asserted by the declarant.

14. Libel and Slander: Proof: Pleadings. Truth of the matter charged as defamatory cannot be proved as a complete defense under a general denial.

15. Libel and Slander: Proof: Damages. In a suit for slander per se, no proof of any actual harm to reputation or any other damage is required for the recovery of either nominal or substantial damages.

16. Libel and Slander: Liability. One who puts a libel or slander in circulation is liable for any subsequent publications that are the natural consequence of his or her act.

17. Libel and Slander: Proof. In proving a publication, a plaintiff is not required to show that the slander was made known to the public generally. It is enough that the plaintiff show that it was orally communicated to a single person other than the plaintiff.

18. Libel and Slander: Liability. One who repeats or otherwise republishes defamatory matter is subject to liability as if he or she originally published it.

19. Motions for New Trial: Appeal and Error. A motion for a new trial is addressed to the discretion of the trial court, and absent an abuse of discretion, the trial court's ruling will be upheld on appeal.

20. Verdicts: Appeal and Error. A verdict may be set aside as excessive or inadequate when, and not unless, it is so excessive or inadequate as to be the result of passion, prejudice, mistake, or some other means not apparent in the record. If a verdict shocks the conscience, it necessarily follows that the verdict was the result of passion, prejudice, mistake, or some other means not apparent in the record.

21. Libel and Slander: Damages. In an action for defamation, the damages which may be recovered are (1) general damages for harm to reputation, (2) special damages, (3) damages for mental suffering, and (4) if none of these are proven, nominal damages.

22. Damages: Evidence: Appeal and Error. In reviewing the evidence on damages, an appellate court views the evidence in the light most favorable to the prevailing party, and all controverted facts are resolved in favor of that party.

Randall T. Smith, Lincoln, for appellant and cross-appellee.

Robert A. Wichser and Craig W. Feil, of Sodoro, Daly & Sodoro, Omaha, for appellee and cross-appellant.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Plaintiff, Robert L. McCune, appeals a Sarpy County district judge's order denying him the benefit of a $25,350 verdict rendered by a jury in his favor because he had been slandered.

The trial judge found that the damage award was the result of passion and prejudice and ordered a new trial on damages only. Plaintiff appeals that finding and order.

Rose Neitzel, the defendant, has cross-appealed, claiming the trial court erred (1) in failing to properly instruct the jury on slander per se, (2) in an evidentiary ruling, (3) in granting the plaintiff's motion in limine, and (4) in overruling her motions for a directed verdict.

We find that the verdict in favor of the plaintiff should be reinstated and that there is no merit in the defendant's cross-appeal.

In an action at law, this court on appeal views the evidence in the light most favorable to the prevailing party. State v. Smith, 231 Neb. 740, 437 N.W.2d 803 (1989). All inferences which may be drawn from the evidence must be drawn in favor of the prevailing party. Forker Solar, Inc. v. Knoblauch, 224 Neb. 143, 396 N.W.2d 273 (1986).

Taking the view most favorable to the plaintiff, the record reflects the following operational facts.

McCune, a single, 27-year-old man, was raised in Springfield, Nebraska, which has a population of 800 inhabitants. Since the age of 15, the plaintiff at various times had been employed in the sprinkler business on a part-time and full-time basis. In March 1986, McCune began employment with a Gretna business owned by his brother. McCune's primary duties consisted of selling residential lawn sprinkler systems and managing the installation crews. The company operated within a 100-mile radius of Gretna.

During July 1987, the defendant's sister, Lois Keyes, was bedridden due to paralysis on her left side caused by a stroke. Patricia J. Dieleman was employed as a certified nurse's aide assigned by her employer to assist Keyes in her home. The plaintiff's mother, Betty Holz, with whom Dieleman shared a common employer, was a home health aide.

On the evening of July 8, 1987, Brenda Wills, Keyes' daughter, informed Keyes and Neitzel that she knew a friend of McCune's who was dying of AIDS. While Neitzel was visiting Keyes at her home the following afternoon, Keyes told Neitzel that she did not want Holz to take care of her because she was told that Holz' son had AIDS. Shortly thereafter, when Dieleman entered the room to attend to Keyes, Keyes, Dieleman, and Neitzel discussed Dieleman's coworkers with whom she was familiar. During the course of the conversation, Neitzel asked Dieleman if she knew the plaintiff's mother. After Dieleman indicated that she knew McCune's mother, Keyes became upset and stated that she did not want Holz in her home. When Dieleman asked why, Neitzel responded, "Didn't you know her son, Bobbie, has AIDS?" Dieleman thereupon asked, "Bobbie McCune has AIDS?" and Neitzel said, "Yes." Neitzel testified that she stated, "Lois said Bobbie McCune was in the hospital with AIDS." McCune was not afflicted with AIDS.

Dieleman testified that she was shocked when Neitzel made the statement to her. After Dieleman stated that she would have to warn somebody, Neitzel replied that she would warn her children if they were associating with a person that had AIDS. Later that same day, Dieleman reported Neitzel's remarks to a friend of hers and to McCune's mother. Neitzel testified that she spoke of the July 9 events with Keyes' seven daughters, her own husband, her sister, her brother, and her four sons.

The plaintiff testified that after he became aware of Neitzel's statement, he believed that people would regard him differently. McCune avoided Springfield, where he had previously visited his mother and friends at least two times per week. Furthermore, McCune, due to embarrassment, avoided some family gatherings. He testified that one Springfield resident confronted him regarding AIDS.

There was evidence that McCune was a very good employee of his brother's until approximately the third week of July 1987, when his productivity declined dramatically. McCune testified that he was having problems with the workers he supervised because of the rumor that he was suffering from AIDS. McCune's brother informed him near the end of July that...