The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-08-27
THE OFFER REJECTED
The News and Observer Serves Notice
of Appeal, its Position Being That it
Has LibeIled No One, Has Shown
No Malice, Has Not Injured Col.
Osborn in Any Way, and Has
Ample Grounds Upon Which
to Ask a New Trial.
Special to News and Observer

Greensboro, N. c., Aug. 26.-After
court convened this morhing, when
divorce case and one or two other
matters on the motion docket had
been disposed of, Judge Ward an
nounced that the jury in the case of
Osborn against Leach and the News
and Observer. had returned their YER
diet last night of four thousand dol
lars danNges against both defendants.
He asked if there were any motions
in the cause Mr.. c.. NJ. BuSbee, of
Raleigh, leading counsel for the
News and Observer, arose and asked
lin behalf of both defendants, a new
trial on the following grounds:
For refusal Of the court to sub
NIT the issues rendered by defendants.
1.-The bitterness of the argument
of Colonel Morehcad, leading counsel
for the plaintiff.
3.-Tne refusal of the court TO give
the instruction asked by defendants
that the statement I'm the alleged libel
Gus article that the plaintiff paid
more for the mules and horses than
they were worth, is not libelous, per Sc
4.-The refusal of the court to give
the instruction asked by defendants
that the receipt of the $500 by plain
tiff in payment for his services, was
a nlistIemeanoP under the statute.
5.-The admission of evidence of
the suffering endured by the wife of
the plaintiff and his suffering on ac-
count of her suffering.
6.-Tbe charge of the court that
the i;:ry could consider the suffering
of the plaintiff OH account OF his
wife's suffering by reason of the al
legged libeiouS article.
Rsn.,k q sVIxpfn of In
jury is excessive, and not warranted
by the evidence.
S,-For the refusal of the court to
admit the evidence of defendant
Leach.
NIr. Busbce and Judge Ward.
In addressing the court. Mr. Busbee
said he would not discuss these points
of his motion which related to failure
of the Judge to give instructions ask
ed By defendants III the charge to the
Jury as he would not ask the court to
over-rule itself.
Judge Ward interposed and said he
hoped he would never become so set
in his own Opinions as to be unable to
discover an error. when brought to his
attention by better authorities, or so
weak as to refuse when becoming
convinced to right q wrong. and in
vited the attorney to present his law
on all points if he desired. and if con-
WINGED of error he would not hesitate
to SO declare, and instead of resent
ing the effort to have him reverse
himself on a law point. he appre-
ciated fully the position of the coun-
sci in their senSe of duty to their
clients, while thoroughly respecting
the court
AIR. Busbee then read several au-
thorities stating that in regard to the
evidence of the wife'S suffering, it
could not be admitted to show addi-
tiOnal mental anguish on the part of
the husband; that the right of re-
covery in mental anguish is re-
stricted to the suffering of the per-
son who is the party plaintiff. He
also read a case where it was decided
that a parent could not recover for
anxiety on account of the physical suf-
fering of a child, who had been
wantonly injured
Judge Ward called attention to the
case first cited, saying it was one
where a wife was the plaintiff, and it
WIS sought to Introduce evidence of
the suffering of the husband. AS
another cause for a new trial, Mr..
Busbee referred to the opening speech
made By Colonel Morehead, attacking
the public press and the Legislature
referring to it as ''infammatory," etc.
Judge Ward remarked that none of
the counsel for the defendants OBJ
jected to it while it was going on.
Discussing next the amount of the
verdict. Mr.. Busbee said that it was
manifest not only to everybody i'm the
court, but everybody outside. that the
jury had awarded four thousand dol
lars as smart money to punish the
defense in disregard of Instructions
that punitive damages could not be
awarded. 1t was beyond all ques-
ton inconsistent with the courts in
structions and contrary to the weight
of evidence.
Gentlemen, l can't see the law as
you see it. but what do you think
about that verdict. Colonel Argo." he
said, looking to the leading counsel
for the plaintiff.
Has an Imponderable Air.
Col. Argo responded in a strong
and earnest appeal that the verdict
stand. He said that il was we'll de-
cided: that in cases where no mathe-
NAUTICAL rule could be applied in es-
timating damages it was not in the
power of the court to set aside a YER
dict because of excess. In cases like
ff'T they had necessarily to be ar
rI by jurors from their owE
eXre sg e, and the extent of suffer.