*657DISSENTING OPINION OF
ABE, J., WITH WHOM FELIX, J. JOINS.' I believe that the trial court erred when it granted summary judgment to the defendant and held that there was no genuine issue as to “actual malice.”
Under the record of this case, I do not believe that the majority of this court can say that the issue, of actual malice should not have gone to the jury. In an affidavit, plaintiff Tagawa pointed out that the defendant Maui Publishing Company, Ltd., printed an editorial calling plaintiff “tender-skinned” and that, on a previous occasion, in October 1961, the editor of the j)l,aui News had told Tagawa “. . . you are trying to be too big for your size. You know I can blast you.” The foregoing establishes an inference that Ezra Crane, editor of the Maui News harbored ill feelings and malice toward plaintiff. This inference gives rise to another inference that John McConkey, Maui News columnist, to carry out this threat deliberately falsified the facts or with reckless dis.regard of facts, wrote and had the article in question published. The fact that adequate investigation was not made as to the ascertainment of the true facts is an element to which a jury would have given consideration to determine the issue of "actual malice.”
It was held in Tagawa v. Maui Publishing Co., 49 Haw. 675, 427 P.2d 79 (1967) that New York Times Co. v. Sullivan, 376 U.S. 254 (1964) is applicable in this case. New York Times Co. v. Sullivan, supra held that the First Amendment guarantees of freedom of speech and of the press as applied to the states by <be Fourteenth Amendment prohibited “a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
It is conceded that investigatory failure alone may raise the issue of negligence but not the issue of actual malice. However, under the record of this case, it can not be said that investigatory failure was the sole issue before the trial court.
Therefore, under the New York Times test for actual malice, this case presents a clear issue as to actual malice. The depositions and affidavits of McConkey, Tanaka, and plaintiff Tagawa show that actual malice is genuinely at issue. The. court should not *658have summarily determined from these self-serving affidavits in the light of Tagawa’s affidavit that the article was published in good faith and not with malice.
It should be noted that the affidavits in question would not have been admissible in evidence. Then, if both McConkey and Tanaka were to testify and if the trial court had permitted them to testify as stated in the affidavits, it would have been for the jury to decide whether any, and if any what weight is to be given their testimony.'
As stated by the U.S. Supreme Court in Aetna Life Insurance Co. v. Ward, 140 U.S. 76, 88 (1891) :
.“The jury were the judges of the credibility of the witnesses .... and in weighing their testimony had the right to determine how much dependence was to be placed upon it. There are many things sometimes in the conduct of a witness upon the stand, and sometimes in the mode in which his answers are drawn from him through the questioning of counsel, by which a jury are to be guided in determining the weight and credibility of his testimony. That part of every case, such as the one at bar, belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men. . . .”
The issue before the court is whether there was actual malice and this issue involves a subjective state of mind. I believe that where the issue involves a subjective state of mind, the trial court should not decide this question on a motion for summary judgment based on self-serving affidavits.
In Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir. 1966), cert. denied, 385 U.S. 1 Oil (1967) the court at page 967 said:
“A motion for summary judgment should be granted where it is shown that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. In deciding whether a genuine issue of fact is raised in any casé, a number of general considerations are relevant. First, the right to trial by jury is at staké, so courts must be ever *659careful to grant summary judgment only when no issue of fact is controverted or turns upon a choice between permissible inferences from undisputed evidence. [Citations omitted] This need for care has given rise to the valid generalizations that summary judgment must be denied when there is ‘doubt’ whether an issue of fact has been raised, and that summary judgment is not usually appropriate when the issue raised concerns a subjective state of mind.”
In Goldwater v. Ginzburg, 261 F. Supp. 784 (S.D.N.Y. 1966), at 78 the court said:
“The issue of actual malice on the part of defendants seems peculiary inappropriate for disposition by summary judgment because it concerns ‘motive, intent, and subjective feelings and reactions. [Citations omitted] The Supreme Court has cautioned against summary judgment ‘where motive and intent play leading roles’. Poller v. Columbia Broadcasting Co., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962).”
Further, I believe that Tagawa’s affidavit raises an inference that the article in question was published with actual malice and therefore the trial court erred in granting summary judgment for defendant.
The U.S. Supreme Court in Sartor v. Arkansas Gas Corp., 321 U.S. 620 (1944), in holding that the trial court erred in granting summary judgment under Rule 56 of the Rules of Civil Procedure solely upon opinion affidavits of experts said at pages 628-629:
“We think the defendant failed to show that it is entitled to judgment as matter of law. In the stipulation, the bulletin, the affidavit of the plaintiffs’ attorney and the admission of its witnesses, there is some, although far from conclusive, evidence of a market price or a value, under the rules laid down by the Court of Appeals, that supports plaintiffs’ case. It may well be that the weight of the evidence would be found on a trial to be with defendant. But it may not withdraw these witnesses from cross-examination, the best method yet devised'for testing trustworthiness of testimony. And their credibility and the weight to be given to their opinions is to be determined, after trial, in the regular manner.”
*660St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323 (1968), cited in the majority decision I believe also supports this position, as the court said at page 1326:
“The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when, the publisher’s allegations are so inherently improbable that only a reckless man would have put them, in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”
The majority, decision in this case at page 11 reads to wit:
“If a column by a writer like McConkey had been purely a figment of his imagination, then the issue of ‘actual malice’ would have arisen, summary judgment for defendant would have been denied and the case would have been tried. Also, if the columnist had called the county official and had been told that the work would be paid for, but had gone ahead and published the article, then ‘actual malice’ would have been an issue. However, the record indicates that these developments did not take place.”
Now, how can the record of the case where there was no trial establish or indicate “these developments”? How can the majority court hold those facts would not or could not have been brought forward at the trial? Weren’t these facts to be proven at the. trial? .Plaintiff not having been given an opportunity to prove his case, is the majority court correct in stating that as the facts showing “actual malice” were not indicated on the record the trial court did not err in granting summary judgment to the defendant?
■ The majority court, I believe, in its zealousness to protect one’s constitutional right of freedom of the press guaranteed by the *661United States and Hawaii Constitutions is trampling upon another constitutional right to a trial by jury also guaranteed by both constitutions.
This court in Abraham, v. Onorato Garages, 50 Haw. 628, 446 P.2d 821 (1968), at page 631 stated:
“In considering the validity of the granting of summary judgment under H.R.C.P. Rule 56 (c), the appellate court must determine whether any genuine issue as to a material fact was raised and whether the moving party was entitled to judgment as a matter of law. Richards v. Midkiff, 48 Haw. 32, 39, 396 P.2d 49, 54 (1964). The inferences drawn from the underlying facts alleged in the materials (affidavits, testimony, exhibits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).”
Here the defendant Maui News Publishing Co. is the moving party and I believe viewing the record, the affidavits and depositions in the light most favorable to the plaintiff, there is a genuine issue as to actual malice and the plaintiff is entitled to a trial by jury on that issue.
The summary judgment in favor of defendant precludes plaintiff from presenting his case to the jury on the issue of actual malice thereby not only denying plaintiff his day in court, but also his right to a trial by jury.