Gattis v. Kilgo
| Decision Date | 28 October 1902 |
| Citation | 42 S.E. 584,131 N.C. 199 |
| Parties | GATTIS v. KILGO et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Granville county; Shaw, Judge.
Action by T. J. Gattis against J. C. Kilgo and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.
During a trial of the president of a college by the trustees on widely circulated charges of immorality and incompetence, the president delivered a speech defamatory of one of the witnesses. The proceedings, including the speech, were afterwards published by the president and other trustees, and for this the witness brought action for libel. During a second trial, on which the issue was reduced to that of malice on a privileged occasion, the plaintiff introduced a mass of testimony as to circumstances attending the trial and as to other matters none of which either pertained to the regularity of the trial, or tended to show malice in the publication, but which were calculated to arouse prejudice in the jury. The trial lasted several days. The court, before argument was commenced by counsel, informed them, in the presence of the jury, that he would take from the jury all such evidence. Nevertheless plaintiff's counsel used the evidence in his argument. After argument the court attempted to withdraw from the consideration of the jury the whole mass of objectionable testimony. Held, that the mistake of the court in admitting the mass of testimony, and permitting it to remain with the jury so long, could not be corrected by such withdrawal.
During a trial of the defendant Kilgo, the president of a college by the board of trustees, on charges publicly made of immorality and incompetence, he delivered a speech defamatory of plaintiff as one of the witnesses therein, and afterwards with some of the trustees, caused the whole proceedings to be published. For such publication, plaintiff brings this action of libel.
Winston & Fuller, T. T. Hicks, and Royster & Hobgood, for appellants.
Boone Bryant & Biggs, Guthrie & Guthrie, A. W. Graham, and A. A. Hicks, for appellee.
In the opinion of the court delivered at the February term, 1901 and published in 128 N.C. 402, 38 S.E. 931, it was said, "Whether or not the speech of the defendant Kilgo, published by the defendants in pamphlet form, and embodied with the whole proceeding in the matter of the investigation, was a privileged communication [and it would have been more accurate to have said a "privileged occasion"], 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." In the new trial ordered in that opinion, it was anticipated that in that trial the question of malice in the defamatory publication would be the only matter before the trial court. It was perfectly apparent to this court, and it seemed to be equally so to his honor who presided at the first trial of this case, that, from the plaintiff's evidence, the investigation by the trustees of Trinity College of certain charges of incompetency and moral unfitness made against its president, Dr. Kilgo, was a matter of justice to Dr. Kilgo and to the college, and that the college was, in a sense, a public institution, and therefore that the publication of the proceedings in the investigation by the college was a privileged occasion. From a careful reading of the statement of the case on the present appeal, it seems clear that the plaintiff's counsel acquiesced in that view of the opinion of this court. The plaintiff himself, when upon the stand as a witness, was asked by his counsel "whether you were a witness before the board of trustees of Trinity College upon the investigation of the matter of charges said to have been brought by Judge Clark against Dr. Kilgo?" And we find nothing in the whole evidence tending to show that the meeting of the board of trustees was not properly called or was not properly constituted. The plaintiff also introduced in evidence a paper called a "challenge" of Judge Clark to the board, in which challenge exception was made to certain individual members of the board. But the regularity and authority of the board were recognized in the last lines of the challenge, in these words: "As an act of justice to yourselves, to the college, and to myself,--an act of justice that no North Carolinian should ever seek in vain,--I ask that the triors be polled, and that no one shall sit on this investigation who is not absolutely and altogether impartial, and uncommitted by former deliberate expressions of his views." The manner, too, in which the plaintiff's counsel conducted the plaintiff's case, shows that the counsel regarded the publication of the defamatory matter as an occasion of privilege. The plaintiff, in his complaint, did not allege any matters or make any admission to the effect that the publication of the matter was a privileged occasion. The simple allegation of the complaint was that the publication had been made. It was therefore incumbent on the defendants to show the privileged occasion. The plaintiff, however, was not satisfied to introduce evidence of the publication of the defamatory matter, and stop, which was all he was required to do upon the allegations of the complaint, and wait for his adversary to take up the burden of showing a qualified privilege. He went into matters showing the privileged occasion himself. And that can only be accounted for upon the supposition that he would have to meet that contention on the part of the defendants when the defendants should have put in their evidence on that point, and that he (the plaintiff) had as well meet the matter in limine. But the counsel of the plaintiff, instead of being consistent in the matter of the introduction of evidence, and confining it to matters going to show malice in the publication, brought into the trial a vast pile of evidence inconsistent with their theory of the case, and entirely incompetent if the occasion of the publication was privileged. His honor, however, in what he calls "Note Y," in the record, as distinguished from what he designates as his charge, states that, "in the admission of evidence of what transpired before the board of trustees upon the trial of Kilgo, the court opened the door and permitted plaintiff to offer evidence of everything that happened there, to determine as to whether there was a trial there." As we have said, the plaintiff, having alleged the publication by the defendants of matter which was and is libelous per se, and having introduced evidence of its publication, was entitled to judgment, if he had not shown by his own testimony an occasion of privilege in the publication of the defamatory matter, or unless the defendants had assumed the burden, and in their evidence had shown a privileged occasion in the publication of the matter. But if his honor, notwithstanding the manner in which the plaintiff's counsel conducted the case, felt it his duty to investigate the proceedings before the board of trustees of the college, to see whether there had been any trial, he should have admitted only such evidence under that head as pertained to the regularity and the integrity of the proceeding. That he did not do. He allowed evidence to the effect: That the meeting of the trustees was held with closed doors. That the stenographer was not sworn. That Judge Clark was refused a stenographer. That Judge Clark's challenge to the board was rejected. That Mr. Jurney said: That Judge Montgomery nodded and consulted with Dr. Kilgo, and referred him to Greenleaf on Evidence, and that Dr. Kilgo's conduct and behavior when cross-examining the witnesses, including the plaintiff, were overbearing and offensive, and brutal to the plaintiff. Especially should his honor not have allowed as evidence that part of the...
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