The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-18
Supreme Court Decisions
(Reported by Jos. L. seawell.)

COMPANY. Error.
Where a complaint alleged an express
ana legal obligation upon the part of a
water company TO provide and furnish
ample protection against fire and a
Dfeach thereof and consequential dam
age to plaintiff judgment upon the YER
dict IN favor of the plaintiff should be
ex delicto and not ex contractu.
Under the present system, courts are
required to frame their judgments so
as to determine the legal and equitable
rights of the parties. 6S N. C. 354.
HOOKER VS.. YELLOWLEY. No error.
Administrators-Sur etyship-Stat. Lin
Where an administrator inherits his
intestate's land as one of his heirs at
law, and mortgages the land to one of
the sureties upon his administration
bond to indemnify said surety against
loss by reason of his suretyship. the
mortgage is void as against the claims
Of creditors of the intestate. even
though personal remedy of such cred
ltofs against the administration bond is
barred by the statute of limitations
badger VS.. Daniel, 10 N. C. 372.
GATTIS VS.. KILGO. New trial.
SANDER, and libel, privileged commun-
ications, malice and damages
one who aDears in his own behalf
VI III peha1 OF another, is privileged
70 say In the progress of the trials any
'hilg IN reference to the character or
conduct of the opposing party that is
relevant to the issue before the court
without mourning liability in an action
OF SANDER predicated upon the langua ge
used.
Upon the foregoing principle it is held
that where the president of a college
is on trial before the trustees Of the
institution as to his fitness for such DO
sitlon, the trial having been brought by
reason OF certain charges preferred
against his character and competency
ms severe and caustic language in ref
erence to the instigator of the charges.
II pertinent to the issue, is absolutely
privileged. and the trustees have the
right to publish the proceedings. in
Guiding the language used by said
president, for the purpose of giving to
the public and the patrons of the col
lege all the information concerning the
whole matter which the investigation
and trial may have brought out. proyid-
ed the publication is made without NAL
ice.
In such case, the language complain
ed OF being privileged communica-
ton, malice in the publication thereof
cannot be inferred from Indifference as
10 It's consequences to the plaintiff, and
although the language as published
may contain some expressions which
go beyond what is necessary for the de-
fence of the college, it does not fol-
low that the publication affords evil
dence of malice which the plaintiff is
emitted to have submitted to the jury.
When the facts are uncontroverted, it
is Tor the court to decide whether or
not the publication is absolutely privi-
legged; and If the court decides that the
publication is privileged or condition
ally privileged, then the question wheth-
or there is intrinsic or extrinsic evil
dence of malice is matter of law to be
determined by the court
Before damage can be recovered by
enc. by reason of words spoken or pub
lished in reference to his profession or
office, he must have been actually en-
gagged in the work of his profession or
in the possession of the office at the
ten.
COOK VS. SOUTHERN RAILWAY
co. Affirmed
Negligence. trespasser
The rule in Pierce VS. Railroad. 124
n. G. SO, to the effect that a trespasser's
wrongful act in getting on a car does
not justify making him get off in a
manner calculated to kill or cripple him,
is approved; also, that a railroad COM
pany is responsible for injury by a
wrongful act of an employee, acting in
the general scope of his employment,
whether the act be Wilful and malicious,
or merely negligent.
The court below charged the jury
that if the plaintiff tramp was stealing
ride, the defendant owed him only or
binary care-such as one of ordinary
prudence would exercise under similar
circumstances; Held, no error.
In this case the evidence shows that
the flagman and brakeman, by assault
and threats, made the plaintiff get off
the car when the train was moving four
or five miles an hour, and the court
holds the defendant liable for the re-
sultant injury. The plaintiff could have
been legally elected if no more force
was used than necessary.
If conductor, while acting as con-
ductor, or a fiagman, or a brakeman,
while on duty, as flagman or brakeman,
wrongfully assault one on the train,
even though trespasser, and such
wrongful assault is the proximate cause
of the injury. the company is liable.
"Acting within the general scope of
his employment means while on duty,
and not that the employee was author
lied to do such acts.
MOORE VS.. COHEN. No error.
Attorney and client.
Action for malicious prosecution in
arresting plaintiff who was defendant
in a former suit in which Judgment was
obtained against him upon claim sent
to an attorney for collection, in the
course of which the arrest was made
without the knowledge of the defend
ant who was plaintiff in the former
suit; held that while it is true that a
client is bound by the acts of his at
torney in the ordinary course of pro-
cedure as to judgment, etc, yet he is
not responsible for any illegal action
taken or directed by him, which the
client did not advise or participate in
on whit NO i,lctifia6