*1 argument matching previous derived color sentences. contemplates
The statute an offense on which the Surely maximum sentence is warranted. facts say this case sentence warrant such a unless we are to imposed. the maximum should never be following This case is controlled rule: Where punishment anof offense created statute left court, discretion of a to be exercised certain within prescribed imposed limits, sentence within such limits appears will not be disturbed unless there anbe abuse Young of such discretion. v. State, 155 Neb. 51 N. 326; W. 2d Ohler, State v. Neb. 129 N. W. 2d No abuse of such discretion has shown. judgment sentence district court are correct and are affirmed.
Affirmed. G. Berenice Whitcomb, appellee, v. Nebraska State Association, Education al., et corporation, appellants.
Crosby, Pansing, Binning Guenzel & and Theodore L. appellants. Kessner, for DeLacy Thomas
Kennedy, & Svoboda Holland, appellee. Burke, J., Heard before Smith, Spencer, Boslaugh, White, C. *2 Judge. District JJ., and and Newton, Moran, McCown, J. Spencer, damages claimed to have recover action to This is an by the matter the of libelous resulted published state The trial court held the defendants. The and libelous se. actionable ments were plaintiff in amount of the the verdict for returned a appeal perfected to defendants have an and the $38,500, this court. Education herein- Association, State
The Nebraska nonprofit corpora- Association, to is a referred as after organized protect the of educational interests tion teaching the the members of the Nebraska and welfare secretary, Lynch profession. is its and John executive Belz is its director research staff consultant Paul Rights Respon- Professional Commission Association, hereinafter referred to as sibilities of Commission. during plaintiff, Whitcomb, Berenice G. 1964-
The prior years term for some thereto, 1965school was a guidance Winnebago, counsellor and librarian at the public schools. She had resided in the Nebraska, town years previously for and had business therein. complaint In October was made to grandmother superintendent that the an Indian public Winnebago schools, who will hereinafter be re- superintendent, molesting ferred had been a small girl. Plaintiff did not communicate Indian this informa- after, any days school board, tion to member of the but 3 complaint receiving superintend- she confronted the accusation. plaintiff, ent with the basis the Association’s bringing rather than action is that informa- Winnebago tion to the attention of the board, school superintendent used it to her intimidate for own by the not renewed purposes. her contract was When brought years Winnebago she later, board school resignation open and forced the into accusation superintendent. super- testified that when she confronted the Plaintiff him did she the accusation she told intendent story private she but insisted not believe reading alleged the occurrence was lessons at which stopped, agreed place be and he should taken have superintendent Plaintiff further testified that this. collapsed office her to leave his on the desk asked cry. going In December she he was because the incident to another teacher the Winne- mentioned bago and thereafter visited with other schools two give it, about did not the information to the teachers but contract until her school board renewed in early March mem- was informed Winnebago school board that she would not ber year. Plaintiff rehired the 1965-1966school demanded *3 to that a statement effect. She thereafter was written writing she would not be advised that rehired because causing dissension she and was dissatisfied had with superintendent. the day being plaintiff after
Within a or two so informed, of Association, which she was a member, contacted investigation requested personnel policies that an of the Winnebago public schools be the undertaken. Pur- request to this Association sent a staff man to the suant plaintiff. community plain- to visit with He interviewed super- March She him tiff on 1965. told that continuously abused her intendent had since 1961 in- finally and had had her fired. cident, Plaintiff then investigator about the told the incident her conver- superintendent October sation with The in- “ plaintiff report vestigator’s told I him: wraps . . (the superintendent) put him under had and laid probably being he some rules which didn’t down like— I but didn’t teacher, dictated know what I could trying just like otherwise, do because this was almost ” fight you know, Lord, town.’ Plaintiff this—in told the on cross-examination she had admitted put superintendent investigator she under had wraps. April plaintiff, On an a letter to referring superintendent, employee of Association, compromised ago, viper years “I four said: my much sorrow.”
Subsequent to the oral notification that contract her brought would not be renewed con- superintendent duct school attention of the through Subsequently, attorney, an board. obtained she presented affidavits which to the school board and resignation superintendent. resulted in On parents March circulated a letter to the graduates, stating 1962, 1963, of the 1964, and 1965 school board had refused to renew her contract, and requesting their assistance. Her contract renewed.
Subsequently, request superintendent of the new Winnebago public schools, the chairman of the composed throughout Commission, 15 educators from inquiry preliminary the State of Nebraska, directed a go Winnebago inquiry concerning team to to make an problems system. conditions and in that school in- quiry report team made its to the full Commission. The investigation Commission then determined that an com- consisting mittee, of five Association, members of com- posed parts of educators from various state, should Winnebago. be sent This committee heard evidence community, submitted various members of the includ- ing superintend- members of the school board, the new plaintiff, attorney. ent, and her The committee re- port, accepted by which is No. 7 herein, exhibit *4 report plaintiff’s Commission. The membership, recommended that previous superintendent and that of the Winnebago schools, in Association be terminated and teaching that action be taken to revoke their certificates. report to the Winne- made recommendations also superintendent bago and to the new of education board programs. concerning policies This based action report. findings essentially in on the statements 25-840, section to the amendment Previous se, libelous was 1943, when R. R. S. presumption prima presumed. The made a malice was rebutting that the burden of on so case malice facie Rice, presumption Hall on the defendant. See v. was 1957, 1421. In 223 N. W. 78 A. L. R. following added to the statute: “The truth was be a defense unless alone shall itself and proved by was be shall Actual be actual malice. malice shall not made with changed publication.” presumed or from inferred eliminating any presumption by of malice and the law transferring plaintiff on that issue.
the burden attempt are able to no determine, far as we So comply by 25-840.01, section made also added to R. R. S. which was the statute in the absence of actual malice limits which, damages special recovery as therein unless defined, requested assume, as set out therein. We correction plaintiff’s predicated cause of action is therefore, on above, malice. As stated actual R. R. S. places proving the burden of actual now malice plaintiff, specifically provides that such malice publication. shall not inferred trial The instructions court defined actual it could not malice and stated that be inferred from the damage publication alone. The fact of instruction included following: you “In addition thereto, th e if find publishing complained defendants the matters plaintiff, malice motivated toward the special damages, you may then in addition to the plaintiff award general damages any pain, humiliation and you thereby.” find of mind that was caused distress place in the instructions At advised *5 proving the to who had burden actual malice. This particularly prejudicial because the court was trial the statements made “are directed actionable and plaintiff se, which entitle libelous to recover dam- specified ages as hereinafter No. instruction ** placed All of the burdens were on the defend- jury From size it is verdict, ants. evident complained matters considered the of to have been moti- by actual malice. vated plaintiff an
The tendered instruction on the issue of following language: included malice which “If the publication jury finds that the defendants’ was substan- tially upon the burden true, then prove was made with actual malice. presumed shall Actual malice publication.” not inferred or from This instruction was refused the trial only and the last court, sentence was covered given. instructions given, judgment
For the reason
herein is reversed
for
cause
remanded
a new trial.
Reversed
and remanded.
concurring.
J.,
Smith,
“* * *
Rights,
The
Bill of
Nebraska
5, reads:
all
for
both civil
libel,
trials
criminal,
the truth
good
justifiable
with
motives,
when
and for
ends, shall be
sufficient defense.” Section
* * *
S.
reads: “The truth
shall be a
proved by
defense unless it shall be
made
with actual malice. Actual
malice shall
publication.”
be inferred nonper-
The district court refused to allocate risks of
harmony
suasion
statute.
It instructed jury
carry
that defendants
the risk on issues of
good
justifiable
motives
The
ends.
instruction is
interpretation
an
traceable to
of the Constitution in
Sprecher,
Wertz v.
No of a constitutional issue opinion majority does not answer raised, product question: judgment under Is the review expression? an with free unconstitutional interference *6 392 88 S. See, Education, 653, Board U. S. Puentes v. of Pickering of Educa 1341; Ct. 2d v. Board 2271, 20 L. Ed. 811; 20 Ed. 2d tion, Beekley 563, 1731, 391 U. S. Ct. L. 88 S. Newspapers Corp. 88 S. Hanks, 81, v. S. 389 U. Publishing Butts, Ct. 19 Ed. 2d v. 197, 248; L. Curtis Co. York 1094; 388 U. 87 Ct. L. Ed. 2d New 130, 1975, S. S. 18 11 710, Sullivan, 254, Times Co. v. 376 U. S. 84 S. Ct. L. 2d Ed. concurring part. dissenting part J., in in
Boslaugh, provides libel, in Our Constitution all trials for published good “the and for motives, truth when with justifiable I, ends, shall be a sufficient defense.” Art. provision § 5, has been Constitution Nebraska. upon generally construed to mean that is burden the defendant to establish both the of the state- truth good for ment and that it was with motives justifiable ends. Sprecher,
In it 1071, Wertz v. N. W. 118 prior was noted that to 1875 the Constitution did in it refer truth as a defense civil and that actions, to provide unnecessary truth alone should libel. This said: a defense in civil suits for court then formed not the intention the men who if it was “Now, compel de- convention in 1875 the constitutional attempted criminal in civil as well as if he cases, fendant prove good justifiable justify, ends, motives and charges publishing libel, in truth his a. well as the civil’ constitution inclusion of the in later words ‘both surplusage.” was and is senseless and Legislature amended section provide S. libel cases: “The truth itself and alone shall be a defense unless proved by shall be
made with malice. Actual malice shall not be publication.” inferred or opinion The effect of the of the court in this case previous to abandon the construction of constitutional provision adopt a construction have which would appropriate provision under contained Constitution of 1866. upon proof
But if now there is no burden of a defend- ant in a libel case to establish that the was: good justifiable ends, with motives then the judgment should be reversed because instructions placed upon the court that burden the defendant. McCown, J., dissenting. Boslaugh’s Judge opinion respect
I concur interpretation provisions constitutional I, Article that 5, of the Nebraska Constitution. If interpretation Legislature correct, had power interpretation to alter the constitutional of Wertz Sprecher, although v. Neb. N. W. *7 obviously might court do so. applies only
Section R. 1943, R. S. a libel which the truth of the matter is asserted falsity In publication established. case, this of the alleged, was and there was evidence from which the jury might have found that one or more of the statements though about the pre were false. Even sumption arising merely publication of malice off, blocked existence actual malice, when the may falsity, fact is in issue, be inferred from absence of probable cause, or other relevant circumstances. 33 Am. p. Jur., § Libel and 266, Slander, Even under the rule of New York Times Co. v. Sulli- S, Ct. 11 L. Ed. 2d actual U. 84 S. van, publication of statement with defined as the is malice knowledge disregard or reckless it was false with negligence dis Mere it false or not. whether was covering The case is sufficient. misstatements fact not assumption parties by both on the at bar tried was applicable. For that’ York Times rule was not New applied at here, rule should not be alone, reason reargument. Even if the rule were least without applicable, Times go is sufficient evidence to there do I issue actual malice. Neither think that “public officials” intended to extend rule as to policy do not extend school teacher duties whose establishing York functions. footnote No. 23, See New supra. apply Sullivan, To rule Times Co. v. Times would, as official conduct in this situation and treat it practical purposes, any public employee make for all “public paid official.” from tax funds a apparent It also case that the trial court’s opinion majority, as the of the instructions, well assumption provisions proceed on that the of section apply R. That section 25-840.01, S. this case. damages recovery special a correction limits unless requested published, apply not but where it does proves plaintiff alleges publication that the prompted malice. It be noted here should punitive exemplary dam under Nebraska law any ages event. are allowable applies publica- 25-840.01, R. S. to “the Section * * any by any apply medium, of a libel To to'
tion ignores “by any of a medium.” libel words Judiciary Committee to the statement respect Legislature to B. L. 318 states the bill “affecting changes provides libel in the law newsi- legislative only papers.” The statement refers newspaper provisions newspapers libel laws. The clearly of a are at for public correction aimed á
purveyor and information. such news *8 presumably provided media, the correction is as way retracting correcting broad and effective a as reasonably required. could The term “medium” in the connotation of section might newspapers, of the statute well include tele- radio, magazines. applies vision, some to a contexts it advertising. carry vehicle used to See Webster’s Third Dictionary. New International Legislature I do not believe the intended the section apply defamatory to false and matter in reports general public which had circulation to the and in which a correction or retraction not effec- would tively ordinarily pre- undo the harm which law- awarding general damages per sumes in for a libel se. particularly This is where, true here, as there is no identity. publi- issue of honest or error mistake in newspapers cations pub- which defendants’ followed defamatory emphasize lication of the point. material approved Other limiting states have similar statutes general damages respect actions libel to news papers. See Werner v. Southern California Associated Newspapers., 35 Cal. 2d 2d 825, P. L. 13 A. R. following page 2d and the annotation at 277. The policy Legislature. is, involved such statutes course, for the interpret
However, 25-840.01, indicating legislative S. as intent applies any directly libel, and all flies the face its specific legislative history, requires and also that we ignore “by any medium.” words This violates the ordinary statutory rules of construction. legislative changes,
Prior to the 1957 Nebraska, and most states, other held that malice in law is from the per of an article libelous se presumption becomes conclusive unless the truth the libel Printing Rimmer established. v. Chadron Co., 56 N. W. 2d See, also, 33 Am. p. § Jur., Libel and Slander, 247. Unless libel se. been abolished has-now in. Nebraska, the burden of satisfied to malice was here unless the defend- proof *9 established the ants truth matter. defamatory here reverses the trial majority opinion court upon ground instructions failed to the bur- place den the plaintiff prove actual malice. If the in- structions were prejudicial, appear would they to the prejudicial restricting plain- special tiff to unless the found damages As malice. a practical matter, the instructions required of actual proof malice before the plaintiff could recover even any general did damages, though not specify they had who prove it. was not prejudicial defendants. City municipal v. Watts, appellant,
John
Omaha,
appellees.
corporation,
et al.,