The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-05-31
The defendants excepted to the word

The defendants excepted to the word
solely"
We are sure that they got all that
they were entitled to on that point of
the case. The defendants, Duke and
Odell, as trustees of the college were
entrusted with the duty to have the
charges inquired into by the board of
trustees-the proper tribunal for that
purpose-and they had the right to pub
lsh the proceedings for the purpose OF
giving to the public and to the patrons
of the college all the information con-
cerning the whole matter, which the in
vestigation brought out; provided the
publication should be made without
malice; and His Honor therefore prop
erly instructed the jury, ''if, however.
the defendants published in good faith
for the reason claimed by them, actu~
ated solely by a desire to protect the
college and give its patrons correct and
full information of the entire proceed
ings, in such case there would be no
malice and the jury should answer
the third issue mo-" and this, though
the charges contained therein may have
been both false and defamatory. And
he said further: eff these defamatory
statements were false and defendants
published with a design and intent to
injure 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 will an.
swer the issue yes.
And His Honor correctly instructed
the jury that the publication being ad-
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 publica-
tion 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 a 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 ulterior 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-
sonal III will and a desire to injure 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 a discussion of the
most important principles of law in
volved 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
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
tions given by His Honor to the jury at
the request of the plaintiff, and for which |
a new trial must be ordered.
The case was hotly 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 |
was duty of the trustees
and 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 KiIgo
as president of the college, and of the
other matters included in the charges.
balance of opinion will be published
to- morrow Editor
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