Gattis v. Kilgo

Decision Date30 May 1901
Citation38 S.E. 931,128 N.C. 402
PartiesGATTIS v. KILGO et al.
CourtNorth Carolina Supreme Court

Appeal from superior court, Granville county; Hoke, Judge.

Action by T. J. Gattis against J. C. Kilgo and others. From a judgment for plaintiff, defendants appeal. Reversed.

In a suit for libel, defendant's failure to deny allegations in the complaint as to plaintiff's good character and innocence of the charges made was not an admission that the publication of the alleged defamatory matter was false.

Winston & Fuller, Royster & Hobgood, and T. T. Hicks, for appellants.

Boone Bryant & Biggs, Guthrie & Guthrie, Hicks & Minor, A. W Graham, and G. M. Gattis, for appellee.

MONTGOMERY J.

The publication of the pamphlet that contained the speech of the defendant Kilgo, which published speech is the foundation of the plaintiff's cause of action, was the result of an investigation held by the board of trustees of Trinity College, of which body the defendants Duke and Odell were members, of certain charges of incompetency and moral unfitness against the president of the college, the defendant Kilgo. There was also included in these charges a statement to the effect that the spirit of commercialism in its lowest and most dangerous form was being introduced into the student life, notwithstanding the claim of the school for patronage that the foundation and development of Christian character was one of its chief aims. The charges were made by one of the most distinguished and influential citizens of the state accomplished in nearly every department of learning, and himself one of the board of trustees of the institution; and they were published far and wide, originally in a newspaper printed in Raleigh, and probably read by more people than any other paper circulated in the state. Investigation of the charges was a right of the defendant Kilgo, as they affected his personal and professional character. It was a matter of necessity, so far as the future of the college was concerned. Without an investigation and a refutation of the charges, or the prompt removal of the president and the sinister influences which were alleged to be at work in the college, if the charges should be found true, the institution would necessarily suffer in its reputation, with a consequent decrease in its patronage. Whether or not the speech of the defendant Kilgo, published by the defendants in pamphlet form, and embodied with the whole of the proceedings in the matter of the investigation, was a privileged communication, was a question of law, there having been no dispute or uncertainty as to the circumstances attending the publication; and his honor properly tried the case as one of qualified privilege. The college was, in one sense, a public institution. Its patronage was from several states, especially from North and South Carolina, and the investigation was, therefore, one of general public concern. Folk. Starkie, Sland. 223.

In vindication of the personal character of the defendant Kilgo, he had the right to publish a fair and honest account of the acts done in the course of the investigation, provided the publication was free from malice; and on this point his honor, in response to a special prayer of the defendant's counsel in the following words: "That if the jury believed from the evidence that the defendant Kilgo had been subject to criticism and adverse comments and attacks in the press [from another than the plaintiff], and he bona fide believed that the publication of the proceedings before the board of trustees was necessary in defense of his character and standing, and he published the speech as part of the proceedings, in order that the whole investigation might be laid before the public, that it might judge of the truth of the charges against him, then the jury should answer the third issue [as to malice] 'No' as to said Kilgo,"--instructed the jury, after reading the prayer to them: "A man first assailed in public prints has a right to defend himself, and, if the facts stated in prayer are true, and the publication was made by defendant Kilgo in good faith, and solely for the reasons given, there would be no malice as to him, and the jury should, by their verdict, excuse defendant Kilgo on the third issue." 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 intrusted 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 publish the proceedings for the purpose of giving to the public and to the patrons of the college all the information concerning the whole matter which the investigation brought out, provided the publication should be made without malice; and his honor therefore properly instructed the jury: "If, however, the defendants published in good faith, for the reasons claimed by them, actuated solely by a desire to protect the college, and give its patrons correct and full information of the entire proceedings, in such case there would be no 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 them 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, or one of the motives, that induced the publication,--it would be malicious, and you will answer the issue 'Yes."' And his honor correctly instructed the jury that, the publication being admitted, and being a qualifiedly privileged one, it was incumbent on the plaintiff to prove by the greater weight of evidence not only that the publication was false, but that it was also malicious. In his charge on the question of malice his honor was also correct in stating in substance that, although 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 popularly called malice, and not malice in law,--yet that it was not necessary 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 malicious. The request, therefore, of the defendants' counsel to the court for instruction that malice in fact means personal ill will and a desire to injure the plaintiff, was properly refused. Ramsey v. Cheek (N. C.) 13 S.E. 775; Odgers, Lib. & Sland. 266, 267.

Our consideration of this case has been so far confined to a discussion of the most important principles of law involved in the question of malice, prefaced with a general, but sufficiently explanatory, statement of the nature of the action, both for the reasons that what we may have to say in the further consideration 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, errors, certainly in two important instructions given by his honor to the jury at the request of the plaintiff, and further error in the admission of testimony offered by 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 compelled to rule instantly upon many of the most difficult questions of law and perplexing 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 plaintiff's request, instructed the jury: "If you find from the evidence that the defendant Kilgo recklessly used language towards the plaintiff, which was uncalled for, and in excess of the occasion, then this fact is evidence of malice; and, if the defendants Duke and Odell assisted in publishing the said language, and were indifferent as to its consequences to the plaintiff, then this is evidence of malice against the defendants Duke and Odell." We are of the opinion that the speech of the defendant Kilgo was absolutely privileged. As we have said, the investigation was a 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 as president of the college, and of the other matters included in the charges. We can see no difference, and we believe none can be shown between the position of the defendant Kilgo on trial before the tribunal of the board of trustees upon charges against his own personal character and against his competency and fitness for the presidency of the college, and his position before a court of justice on trial for an offense against the laws of the land, or in the prosecution or defense of a civil right. In each place he would have the right to present his case thoroughly; and if, in the heat of argument, or under the impulse of anger, he should use language violent or excessive towards his adversary or to a witness, it would be, nevertheless, absolutely privileged, provided what he said was relevant and pertinent to the issue. It is settled in this state that upon a trial in a court of law a party would have complete immunity under such conditions. In Shelfer v. Gooding, 47 N.C. 175,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT