The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-01

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malice and the jury should answer
the third issue no and this, though
the charges contained therein may have
been both false and defamatory. And
he said further: IF these defamatory
statements were false and defendants
published with design and intent to
iniure the plaintiff, or because they
were mad at him for, testifying against
the president of the college. if that was
the motive that induced the publication,
it would be malicious and you VIII an,
sWer the issue Eyes"
And His Honor correctly instructed
the jury that the publication being adj
mitted and being a qualifiedly privi-
legged one. it was incumbent on the
plaintiff to prove by the greater weight
of evidence, not only that the pubHca-
ton was false. but that it was also ma
licious In this charge on the question
of malice, His Honor was also correct
in stating in substance that although
that the malice, which is a necessary
ingredient in the constitution of Libel
where the publication is privileged, is
actual or express malice-that which Is
popularity called malice-and not malic-
ious in law, yet that it was not neces-
sary that the ill-will or malice of the
defendant should have been against
the plaintiff personally, and that if the
publication was not in good faith for
the reason claimed, but from a
wrongful, indirect and Interior motive
and was false the same would be mali
cious. The request, therefore, of the de-
fendant'S counsel to the court for in
struction that malice in fact means per-
scnal I'll will and desire to iniure the
plaintiff, was properly refused Ramsey
VS.. Cheek Odgers on Libel and SANDER.
266, 267.
Our consideration of this case has
been so far confined to discussion of the
most important principles of law in
yolved in the question of malice, prefaced
with a general but sufficiently explana-
tory statement of the nature of the ac
tion, both for the reasons that what we
may have to say in the further consid-
GRAFTON of the appeal may be more clearly
understood. and that our own views on
those principles of law may be known to
those interested in the future of the
case; for there are, in our opinion, err
rors, certainly in two important instruc-
lions given by His Honor to the jury at
the request of the plaintiff, and for which
rev trial must be ordered
The case was holly contested in the
trial below, continuing for several days,
and His Honor, who presided with his
usual painstaking and ability, was COM
PEELED to rule instantly upon many of the
most difficult questions of law and per-
picking rules of evidence, notice of all
of which cannot be reasonably expected
| OF this court.
We will now take up for consideration
what we think are errors sufficiently
| grave to make necessary a new trial of
| this action.
His Honor, at the plaintiffs request in
| structed the jury: IF you find from the
| evidence that the defendant Kilgo reck-
| lessly used language toward the plaintiff
which was uncalled for and in excess of
| the occasion then this fact is evidence Of
malice against the defendants, Duke and
| Odell." We are of the opinion that the
speech Of the defendant, Kilgo, was alb
| solutely privileged AS we have said, the
! investigation was duty of the trustees
/ and a right Of the defendant Kilgo and
/ the tribunal. the Board of Trustees OF
/ the college, was the proper forum for
/ the hearing of the matters embraced in
| the charges against the defendant Kilgo
i as president of the college, and of the
| other matters included in the charges.
/ We can see no difference. and we be-
/ Iieve none can be shown, between the po-
| sition of the defendant Kilgo on trial be-
1 fore the tribunal of the Board of Trustees
/ upon the charges against his own per-
| sonal character and against his compe-
i tency and fitness for the presidency of
| the college, and his position would be be-
| fore a court of justice on trial for an
offence against the laws of the land, or
| in the prosecution or the defence of a
| civil right In each place, he would have
/ the right to present his case thoroughly,
aand if in the heat of argument or under
| the impulse Of anger he should use Ian
i guage violent or excessive towards his
| adversary, or to witness, it would be
nevertheless, absolutely privileged pro-
i vided what he said was relevant and
pertinent to the issues. 1t is settled in
this State that upon trial in a court
| of law party would have complete i'm
munity under such conditions. In Shelter
| VS.. Goodwin, AZ N. c., It's, the plaintiff,
upon the trial of a slave of the defendant
| before two justices of the peace upon a
! charge of destroying the plaintiffs prop
erty. was examined as a witness The
/ defendant, after having been. asked by
i the justices of the peace If he wished to
/ be heard for his slave, addressed himself
TO the justices, saying: Il wish you gem
tiemen to understand that what Amos
Shelter, the plaintiff has sworn, is q
/ tissue of falsehood and a damned lie from
i beginning to end" In an action OF
i SANDER brought by the plaintiff against
! the defendant for the use of
| words, this court Judge Battle deliver
| ing the opinion) said: after the plaintiff
in this suit was sworn as witness, it
was undoubtedly competent for the de-
| PENDANT to insist before the magistrate in
defence of his slave that what the plain
tiff had sworn to was false; and we
| see no difference whether that was in
sisted on in an elabrote argument or in
the short allegation which he thought
proper to employ. What he said was
certainly pertinent and material to the
cause. The question then is, can an
action of Islander be maintained against
him for the words which he uttered, con-
sidered either as counsel or party? We
think that upon principle it ought not
to be, and that the weight of authority
is decidedly in favor of such principle y
/ And in the same case the court after