This is an action to recover damages claimed to have resulted from the publication of libelous matter by the defendants. The trial court held the published statements were actionable and libelous per se. The jury returned a verdict for the plaintiff in the amount of $38,500, and the defendants have perfected an appeal to this court.
The Nebraska State Education Association, hereinafter referred to as Association, is a nonprofit corporation organized to protect the educational interests of Nebraska and the welfare of the members of the teaching profession. John Lynch is its executive secretary, and Paul Belz is its director of research and staff consultant to the Commission on Professional Rights and Responsibilities of the Association, hereinafter referred to as Commission.
The plaintiff, Berenice G. Whitcomb, during the 1964-1965 school term and for some years prior thereto, was a guidance counsellor and librarian at the Winnebago, Nebraska, public schools. She had resided in the town for 25 years and had previously been in business therein.
In October 1961, a complaint was made to plaintiff by an Indian grandmother that the superintendent of the Winnebago public schools, who will hereinafter be referred to as superintendent, had been molesting a small Indian girl. Plaintiff did not communicate this information to any member of the school board, but 3 days after, receiving the complaint she confronted the superintendent with the accusation. The basis of the Association’s action is that plaintiff, rather than bringing the information to the attention of the Winnebago school board, used it to intimidate the superintendent for her own *33purposes. When her contract was not renewed by the Winnebago school board 4 years later, she brought the accusation into the open and forced the resignation of the superintendent.
Plaintiff testified that when she confronted the superintendent with the accusation she told him that she did not believe the story but she insisted that the private reading lessons at which the occurrence was alleged to have taken place should be stopped, and he agreed to this. Plaintiff further testified that the superintendent collapsed on the desk and asked her to leave his office because he was going to cry. In December 1961, she mentioned the incident to another teacher in the Winnebago schools and thereafter visited with two other teachers about it, but did not give the information to the school board until her contract was not renewed in 1965.
In early March 1965, plaintiff was informed by a member of the Winnebago school board that she would not be rehired for the 1965-1966 school year. Plaintiff demanded a written statement to that effect. She thereafter was advised in writing that she would not be rehired because she had been causing dissension and was dissatisfied with the superintendent.
Within a day or two after being so informed, plaintiff contacted Association, of which she was a member, and requested that an investigation of the personnel policies of the Winnebago public schools be undertaken. Pursuant to this request Association sent a staff man to the community to visit with plaintiff. He interviewed plaintiff on March 18, 1965. She told him that the superintendent had continuously abused her since a 1961 incident, and had finally had her fired. Plaintiff then told the investigator about the incident and her conversation with the superintendent in October 1961. The investigator’s report is that plaintiff told him: “ . . I had put him (the superintendent) under wraps and laid down some rules which he probably didn’t like — being dictated to by a teacher, but I didn’t know what I could *34do otherwise, because this was just almost like trying to fight the Lord, you know, — in this town.’ ” Plaintiff admitted on cross-examination that she had told the investigator that she had put the superintendent under wraps. On April 23, 1965, plaintiff, in a letter to an employee of Association, referring to the superintendent, said: “I compromised with the viper four years ago, much to my sorrow.”
Subsequent to the oral notification that her contract would not be renewed plaintiff brought the 1961 conduct of the superintendent to the attention of the school board. Subsequently, through an attorney, she obtained affidavits which were presented to the school board and resulted in the resignation of the superintendent. On March 19, 1965, plaintiff circulated a letter to the parents of the 1962, 1963, 1964, and 1965 graduates, stating that the school board had refused to renew her contract, and requesting their assistance. Her contract was not renewed.
Subsequently, on request of the new superintendent of the Winnebago public schools, the chairman of the Commission, composed of 15 educators from throughout the State of Nebraska, directed a preliminary inquiry team to go to Winnebago to make an inquiry concerning conditions and problems in that school system. This inquiry team made its report to the full Commission. The Commission then determined that an investigation committee, consisting of five members of Association, composed of educators from various parts of the state, should be sent to Winnebago. This committee heard evidence submitted by various members of the community, including members of the school board, the new superintendent, the plaintiff, and her attorney. The committee report, which is exhibit No. 7 herein, was accepted by Commission. The report recommended that plaintiff’s membership, and that of the previous superintendent of the Winnebago schools, in Association be terminated and that action be taken to revoke their teaching certificates. *35The report also made recommendations to the Winnebago board of education and to the new superintendent concerning policies and programs. This action is based essentially on the statements and findings in that report.
Previous to the amendment in 1957 of section 25-840, R. R. S. 1943, when a publication was libelous per se, malice was presumed. The presumption made a prima facie case on malice so that the burden of rebutting the presumption was on the defendant. See Hall v. Rice, 117 Neb. 813, 223 N. W. 4, 78 A. L. R. 1421. In 1957, the following was added to the statute: “The truth in itself and alone shall be a complete defense unless it shall be proved by the plaintiff that the publication was made with actual malice. Actual malice shall not be inferred or presumed from publication.” This changed the law by eliminating any presumption of malice and transferring the burden to the plaintiff on that issue.
So far as we are able to determine, no attempt was made by the plaintiff to comply with section 25-840.01, R. R. S. 1943, which was also added to the statute in 1957, and which, in the absence of actual malice limits recovery to special damages as therein defined, unless correction is requested as set out therein. We assume, therefore, that plaintiff’s cause of action is predicated on actual malice. As stated above, section 25-840, R. R. S. 1943, now places the burden of proving actual malice on the plaintiff, and specifically provides that such malice shall not be inferred or presumed from publication.
The instructions by the trial court defined actual malice and stated that it could not be inferred from the fact of publication alone. The damage instruction included the following: “In addition thereto, if you find that defendants in publishing the matters complained of were motivated by actual malice toward the plaintiff, then in addition to the special damages, you may award plaintiff general damages for any pain, humiliation and distress of mind that you find was caused thereby.”
At no place in the instructions was the jury advised *36as to who had the burden of proving actual malice. This was particularly prejudicial because the trial court directed that the statements made “are actionable and libelous per se, which entitle plaintiff to recover damages as hereinafter specified in instruction No. 11, * * All of the burdens were placed on the defendants. From the size of the verdict, it is evident the jury considered the matters complained of to have been motivated by actual malice.
The plaintiff tendered an instruction on the issue of malice which included the following language: “If the jury finds that the defendants’ publication was substantially true, then the burden is upon the plaintiff to prove that the publication was made with actual malice. Actual malice shall not be inferred or presumed from publication.” This instruction was refused by the trial court, and only the last sentence was covered by the instructions given.
For the reason given, the judgment herein is reversed and the cause is remanded for a new trial.
Reversed and remanded.