The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-01
THE K|LGO-GATT|S
$4,000 LIBEL CASE
The Supreme Court Granted
a New Trial.
JUSTICE MONTGOMERY
Writes the Opinion Of the Court From
Which There is no Dissent.
Or. NLGo's SPEECH WAS PRIVILEGED
The Court Holds That Judge Hoke Was in
Error In Several Particulars in His
Instructions 10 the

Jury.
The interest in the Supreme courts
decision in the Kilgo-Ga case would
have been very great except that 1t has
been generally understood that the court
would grant a new trial. This paper
printed a forecast of the decision a few
days ago.
TEXT OF THE DECISION.
The decision was rendered by Justice
Montgomery and is as follows:
North Carolina Supreme Court; Feb
ruary Term, 1901. No. 1856 Granville.
#. j. Gattis VS.. J. G. Kilgo, ct. al,
Appellant.
Winston and Fuller, Register and
Hobgood and T. T. Hicks for appellant;
Boone, Bryant and Biggs, Guthrie and
Guthrie Hicks and Minor, A. w. Graz
ham and S. M. Gattis for appellee.
Montgomery j. The publication OF
the pamphlet that contained the speech
of the defendant Kilgo, which publish
ed speech is the foundation of the plain
tiff's cause of action, was the result OF
an investigation held by the Board of
Trustees of Trinity College, of which
body the defendant, Duke and Odell,
were members, of certain charges Oh
incompetency and moral fitness against
the president of the college, the de-
PENDANT Kilgo. There was also included
in these charges statement to the eff
feet that the spirit of commercialism
in it's lowest and most dangerous form
was being introduced into the student
life, notwithstanding the claim of the
school for patronage that the founda-
ton and development of Christian char
acter 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 in
stitution; and they were published far
and wide, originally in 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 de-
PENDANT Kilgo as they affected his per-
sonal and professional character; it was
a matter of necessity so far as the fu-
ture of the college was concerned.
Without an investigation and a refuta-
tion of the charges, or the prompt re-
moval 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 it's reputa-
ton with a consequent decrease in it's
patronage.
Whether or not the speech of the
defendant Kilgo, published by the de-
PENDANTS in pamphlet form and embod-
I'D XUif ho nf
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 cir
cumstances attending the publication.
and His Honor properly tried the case
as one of qualified privilege. The col
lege was in one sense a public insti-
tuition. It's patronage was from several
States. especially from North and South
Carolina, and the investigation was
therefore one of general concern.
(Folkard's Starkie on SANDER and
Libel, 223)
In vindication of the personal charac-
ter of the defendant, Kilgo, he had the
right to publish a fair and honest ac-
count Of the acts done in the course of
the investigation, provided the publica-
ton was free from malice, and on this
point His Honor, in response to a
special prayer of the defendants coun-
sci, used the following words: "Tha,
if the jury believed from the evidence
that the defendant Kilgo had been sub
ject to criticism and adverse comments
and attacks in the press (from another
than the PLAINTIFF, and he bona fide be-
lieved that the publication of the pro-
ceedingS before the board of trustees
was necessary in defence of his charac-
ter 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 an
swer the third issue Gas to malice) no,
as to said Kilgo instructed the jury, af.
ter reading the prayer to them: "A
man first assailed in public prints has
a right to defend himself, and If facts
stated in prayer are true and publica-
ton was made by defendant Kilgo in
good faith and solely for reason given,
there would be no malice as to him,
and jury should by their verdict ex-
cuse defendant Kilgo on third issue
The defendants excepted to the word
SOLELY"
we are sure Inat tHey got all that
they were entitled to on that point of
the case. The defendants, Duke and
Odell, as trustees of the college We're
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
lish the proceedings for the purpose of
giving to the public and to the patrons
of the college all the information con-
corning 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
MR-@REA rEs.,n,.,