Molt v. Lindsay Mfg. Co.

• Decision Date: 26 May 1995
• Docket Number: No. S-93-918,S-93-918
• Citation: 248 Neb. 81,532 N.W.2d 11
• Parties: , 131 Lab.Cas. P 58,077 Ronald MOLT, Appellant, v. LINDSAY MANUFACTURING COMPANY, Appellee.
• Court: Nebraska Supreme Court

Page 11

532 N.W.2d 11

248 Neb. 81, 131 Lab.Cas. P 58,077

Ronald MOLT, Appellant, v. LINDSAY MANUFACTURING COMPANY, Appellee.

No. S-93-918.

Supreme Court of Nebraska.

May 26, 1995.

Syllabus by the Court

1. Evidence: Trial: Appeal and Error. When a court overrules a motion in

limine to exclude evidence, the movant must object when the particular evidence which was previously sought to be excluded by the motion is offered during trial. Error cannot be predicated on the admission of evidence to which no objection was made when the evidence was adduced.

2. Pleadings: Appeal and Error. The overruling of a motion in limine is not reviewable on appeal.

3. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom judgment is granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

4. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

5. Libel and Slander: Proof. In an action for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on the trial the facts, showing that the defamatory matter was published or spoken of him.

6. Libel and Slander. The truth of a defamatory statement is measured by the ordinary implication of the words at the time the statement was made.

7. Summary Judgment: Proof. After the moving party has shown facts entitling it to summary judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.

8. Libel and Slander. Generally, whether a publication is privileged is a question of law to be determined by the court. A communication is privileged if made bona fide by one who has an interest in the subject matter to one who also has an interest in it or stands in such relation that it is a reasonable duty, or is proper, for the writer to give the information.

9. Libel and Slander: Proof. Where a qualified privilege exists, there can be no recovery without proof of malice.

10. Libel and Slander: Proof. In order to establish malice, the plaintiff must demonstrate that the publication was made with hate, spite, or ill will.

11. Libel and Slander. There is no publication when the words are communicated only to the person defamed.

John Morgan, of Morgan & Morgan, Fullerton, for appellant.

Margaret E. Stine, of Harding & Ogborn, Lincoln, for appellee.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.

WRIGHT, Justice.

I. INTRODUCTION

Ronald Molt filed suit against his former employer, Lindsay Manufacturing Company (Lindsay), alleging that it distributed libelous material and made slanderous statements with regard to the termination of his employment. The district court granted summary judgment in favor of Lindsay, and Molt appeals.

II. SCOPE OF REVIEW

When a court overrules a motion in limine to exclude evidence, the movant must object when the particular evidence which was previously sought to be excluded by the motion is offered during trial. Error cannot be predicated on the admission of evidence to which no objection was made when the evidence was adduced. Behm v. Northwestern Bell Tel. Co., 241 Neb. 838, 491 N.W.2d 334 (1992).

The overruling of a motion in limine is not reviewable on appeal. Marple v. Sears, Roebuck & Co., 244 Neb. 274, 505 N.W.2d 715 (1993).

In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom judgment is granted and gives that party the benefit of all reasonable inferences deducible from the evidence. Gravel v. Schmidt, 247 Neb. 404, 527 N.W.2d 199 (1995). Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Id.

III. FACTS

Molt was employed by Lindsay as a maintenance mechanic from July 27, 1987, to June 22, 1992. In June 1992, he was working the third shift from 10:30 p.m. to 7 a.m. When he arrived for work on June 22, he was met by Dave Veach, a second-shift production manager, who took Molt to the office of Patrick Daley, director of human resources. Daley informed Molt that the company had videotape evidence of Molt's pilfering from a change machine in building No. 4. Molt was given the option of resigning or being terminated. After Molt refused to quit, Daley terminated his employment. Molt was then escorted out of the building by Veach.

On June 24, 1992, Molt's wife called Lindsay and demanded that the reason for Molt's termination be put in writing. Daley wrote a letter, which was typed by Peggy Carter, an administrative assistant in the human resources department. Carter personally delivered the letter to Molt's wife in a sealed envelope. The letter states: "As requested, this letter confirms your termination from Lindsay Manufacturing Co. on June 22, 1992. Separation information form states reason for termination, 'Lindsay has evidence of Ron's pilfering the company's change machine in the Maintenance building'. Any questions may be directed to me."

After Molt's termination, the Nebraska Department of Labor Unemployment Insurance Division sent a request for separation information to Lindsay, seeking information on Molt's termination. In response, the form, which was signed by Carter, indicated that the company had evidence of Molt's pilfering from the company's change machine. Sharon Nordhues, a Department of Labor employee, called Daley to obtain additional information. Daley told Nordhues he could not provide additional information concerning the pilfering because of pending litigation. Daley also told Nordhues he understood that Molt would be allowed benefits because there was insufficient evidence to establish misconduct.

Molt's amended petition alleged that on or about June 24, 1992, Lindsay distributed the above-described letter, which contained libelous matter. Molt alleged that at or about the same time, Lindsay falsely and maliciously accused Molt of thievery in the presence of others and that the written and spoken publications were made with malice. Molt alleged that the letter and the spoken word were widely circulated, resulting in injury to his earning capacity, as well as his personal and business reputations. Lindsay denied the allegations and affirmatively alleged that the termination letter was privileged and that the information contained in the letter was true.

The parties stipulated that Lindsay had used a video tape recorder to discover whether individuals were pilfering from the change machine in building No. 4 and that Molt was in contact with the change machine on June 22, 1992. It was further stipulated that the person appearing on the videotape was Molt, that Lindsay had a procedure to follow when an employee lost money in a change machine, and that Molt did not follow that procedure. The parties stipulated that Molt's employment was terminated on June 22 and that Molt's wife requested a letter of termination on June 24.

Molt filed a motion in limine on August 9, 1993, requesting the exclusion of the videotape. Molt asserted that no person was present at the time the videotape was made, so no witness could lay foundation for the admission of the videotape into evidence. The motion was overruled on September 8. On August 30, Lindsay filed a motion for summary judgment, offering in support the videotape of Molt, as well as a number of affidavits and depositions. The motion was sustained on October 5.

IV. ASSIGNMENTS OF ERROR

Molt alleges that the district court erred in overruling his motion in limine and in sustaining Lindsay's motion for summary judgment.

V. ANALYSIS

1. MOTION IN LIMINE

Molt's assignment of error concerning the overruling of a motion in limine is without merit because such a ruling is not reviewable on appeal. See Marple v. Sears, Roebuck & Co., 244 Neb. 274, 505 N.W.2d 715 (1993). In McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990), we stated that a motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury. We noted that it is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of the evidence.

When the court overrules a motion in limine to exclude evidence, the movant must object when the particular evidence which was previously sought to be excluded is offered during the trial. Id. Error cannot be predicated on the admission of evidence to which no objection was made when the evidence was adduced. Behm v. Northwestern Bell Tel. Co., 241 Neb. 838, 491 N.W.2d 334 (1992). The motion in limine sought to exclude videotape evidence. Molt did not object when the videotape was offered at the summary judgment hearing. Molt has therefore failed to preserve his objection to this evidence and has waived any complaint about it on appeal.

2. SUMMARY JUDGMENT

Molt argues that Lindsay committed libel by publishing the reason for his termination in a letter which was seen by numerous individuals at the company and by stating the reason in the communication with the Department of Labor. He also suggests that Lindsay committed slander when numerous individuals at the company told other individuals of the reason for Molt's termination. Molt claims there exist genuine issues of material...