Turner v. Welliver

• Decision Date: 21 August 1987
• Docket Number: No. 85-328,85-328
• Parties: Richard K. TURNER, Appellant, v. Dennis E. WELLIVER and Nebraska All Risk Crop Company, Corporation, Appellees.
• Court: Nebraska Supreme Court

Page 298

411 N.W.2d 298

226 Neb. 275

Richard K. TURNER, Appellant, v. Dennis E. WELLIVER and Nebraska All Risk Crop Company, Corporation, Appellees.

No. 85-328.

Supreme Court of Nebraska.

Aug. 21, 1987.

Syllabus by the Court

1. Trial: Evidence: Appeal and Error. Generally, the reception or rejection of evidence is within the broad discretion of the trial court, and to obtain reversal on the grounds of exclusion of evidence, a clear abuse of discretion must be shown.

2. Trial: Evidence. Evidence which, although relevant, is cumulative may be rejected by the trial court in the exercise of sound discretion.

3. Trial: Parties: Witnesses. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. However, the trial court has broad discretion in declaring a witness hostile, and in order for the court to do so the record should contain evidence supporting such hostility.

4. Trial: Rules of Evidence: Testimony: Proof: Appeal and Error. Error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked.

5. Trial: Rules of Evidence: Expert Witnesses. If the assumption for an opinion advanced by an expert witness is not true, such opinion lacks probative value and should be rejected as irrelevant.

6. Trial: Rules of Evidence: Expert Witnesses. Proposed expert opinion testimony which has no reasonable basis in fact is properly rejected by the trial court.

7. Trial: Directed Verdict: Evidence. For purposes of a motion for a directed verdict a court must assume the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed; nevertheless, where there is no credible evidence upon which a jury can properly proceed to find a verdict for that party, the trial court should direct a verdict.

8. Libel and Slander. In the law of libel and slander, a communication is privileged if made bona fide by one who has an interest in it or stands in such relation that 9. Libel and Slander: Proof. Where a qualified privilege exists, there can be no recovery without proof of malice.

it is a reasonable duty, or is proper, for the writer or speaker to give the information.

10. Libel and Slander: Words and Phrases. Conditional or qualified privilege comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which he or she has a duty, public, personal, or private, either legal, judicial, political, moral, or social, made to a person having a corresponding interest or duty.

11. Libel and Slander: Words and Phrases. A communication may be conditionally privileged if it is made for the protection of the recipient or a third person and the recipient is one to whom the publisher owes a legal duty to publish the matter or to whom the publication is within generally accepted standards of decent conduct.

12. Libel and Slander: Insurance. Communications between an insurer and insured about an agent of an insurer may be qualifiedly privileged.

13. Libel and Slander. Generally, whether a publication was a privileged one is a question of law to be determined by the court.

14. Libel and Slander: Liability. Even though a communication is true or is protected by a qualified privilege, there may be liability on the publisher if such communication or statement was made with malice.

15. Libel and Slander: Proof. As a general rule, in a case of alleged libel or slander, truth is a complete defense absent proof of actual malice.

16. Libel and Slander: Words and Phrases. Actual malice may be defined as hate, spite, or ill will toward the person about whom a statement has been published.

17. Libel and Slander: Words and Phrases: Actions. A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.

18. Libel and Slander. A communication between those sharing a common interest is conditionally privileged.

William H. Sherwood and Charles J. Cuypers of Sherwood & Cuypers, Oxford, for appellant.

Jeffrey H. Jacobsen of Jacobsen, Orr & Nelson, P.C., Kearney, for appellees.

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

HASTINGS, Justice.

The plaintiff has appealed from the judgment of the district court, which sustained the defendants' motion for a directed verdict made at the close of all of the evidence. This was a trial for damages because of alleged libel and slander. Errors assigned may be stated as follows: (1) The court erred by making findings of fact, which was properly for the jury to do; (2) errors were committed by the court in its interpretation of the rules relating to the law of slander and libel; and (3) rulings of the court as to the admission or rejection of evidence were not supported by either the facts or the law.

Richard K. Turner, the plaintiff, purchased the General Service Agency, Inc., in Holdrege, Nebraska, in 1978. Prior to 1980, "all risk" crop insurance was available to farmers only through an agency of the federal government known as the Federal Crop Insurance Corporation (FCIC). In 1980, the Congress enacted a law which established a new marketing plan for all risk crop insurance whereby that insurance would be made available through master marketers, but it would still be underwritten by the federal government. Turner engaged in the sale of all risk crop insurance as an employee of the FCIC's McCook, Nebraska, office until about February In 1981, Turner employed Claude Evans as an agent, and later, in the fall of 1981, he and Evans formed a partnership, called T & E, which was designed solely to solicit and sell all risk crop insurance coverage. It was through Evans that Turner eventually met Dennis E. Welliver, in August of 1981. Welliver was lining up agents for Welliver's master marketing company, the Nebraska All Risk Crop Company, also known as NARCC. Turner did contract with NARCC in October of 1981 and placed his all risk crop insurance through that company.

of 1982, when apparently that agency discontinued direct writing.

According to Turner, when the McCook office of FCIC was closed in the early part of 1982 because the agency went to the master marketing plan rather than direct writing, he was given a list of policyholders by a Ross Smith, the then director of the FCIC in McCook. It seems to be on this basis that Turner claims the insurance customers, whom we will later discuss, were his customers. However, according to the testimony of Welliver, the customers were Welliver's.

There seemed to be no dispute but that, at the time in question, in order for a person to sell federal all risk crop insurance tht person had to be certified, after having taken certain tests prescribed by the federal government. Also, it is agreed that Evans was a certified agent while Turner was not. However, Turner could sell crop insurance through a reinsurance program, as distinguished from direct FCIC insurance through a master marketer. It was this latter program that Turner was following until the spring of 1983.

Turner testified that he decided sometime in 1983 to transfer his crop insurance from NARCC to some other company. However, in later, more specific testimony, he said that it was not until the first or second week of April of 1983 when he made a decision to transfer his crop insurance to Rain & Hail Insurance Service, which was a reinsurance program backed by Aetna Insurance Company. At about this same time, according to the testimony of Claude Evans, on April 28, 1983, Evans terminated his partnership of T & E with Turner. Although Turner testified at trial that the T & E partnership still existed, he had earlier, apparently at a deposition, testified that it terminated on April 30, 1983. Exhibit 17 was a statement given by Evans to Turner, which stated that Evans gave Turner his half of the partnership, T & E, provided all commissions then due Evans would be paid to him. Turner conceded that if the partnership were terminated it would have been necessary for him to have hired a certified agent in order to continue handling federal crop insurance through FCIC.

The occasion which precipitated the series of events resulting in the filing of this lawsuit was the mailing of a letter, exhibit 5, to the all risk crop insurance customers which Turner had placed with NARCC during the past year. The text of this letter is set out in full as follows:

April 21, 1983

Dear Insured:

It has been a privilege to handle your "All-Risk" Crop Insurance business this past year. We hope we have served you well.

In the past our agency contracted your all-risk coverage through the Federal Crop Insurance Corporation's (FCIC) master marketing system. While the coverage was there, we encountered problems in servicing some of our customers, mainly because of delays in losses being processed, indemnity checks being delayed, and other "red tape" hassles.

In an effort to eliminate these problems, we have decided to contract our All-Risk Crop Insurance with Rain & Hail Insurance Service in Omaha. This company has been in business since 1920, and is financially sound, being backed 100% by Aetna Insurance Company for over 60 years, who in turn is backed by FCIC. Our agency has had Crop Hail business with this company for over ten years, and can vouch for their excellent service.

The rates and coverages provided will be identical to those you received with FCIC. We know we will cut out much red tape, and have more control in...