The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-10-29
A New Trial Granted
In Kilgo- Gattis Case.
The expected has happened.

The expected has happened
The Supreme Court has again found
error in the Superior Court in the
case of Gattis VS.. Kilgo and others, and
ordered a new trial.
| Everybody expected the court would
order a new trial. The only interest in
the case has been: Upon what point will
| the new trial be ordered? And will the
court cut the case up by the roots?
| The court has not, in the opinion of an
| able lawyer who read the opinion last
| night, "cut the case up by the roots. y
| AS to when the new trial will be held,
| it is too soon yet to know. The next
| term of Granville Superior Court begins
on the 9th of November; the succeeding
term is in February; and the third term
| is in April.
| The following is the full text of the
opinion. 1t was rendered by Judge
Montgomery. who wrote the former opin
| ion in this case:
| JUDGE MONTGOMERY'S OPINION.
In the opinion of the court delivered
at the February term, 1901 and publish
ed in 12S N c. 402, it was said,
| whether or not the speech of the de-
PENDANT Kilgo, published by the defen-
dants in pamphlet form and embodied
with the whole proceeding in the matter
of the investigation, was a privileged
communication land it would have been
hnu oil nTiN
occasion) was a question of law, there
having been no dispute or uncertainty as
to the circumstances attending the pub
LEGATION, 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 be-
fore the trial court. 1t 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 plaintiffs evidence the investigation
| by the trustees of Trinity College of
certain charges of incompetency and
moral unftness, made against it's presi-
| dent, DR.. Kilgo, was matter OF justice
| to DR.. Kilgo and to the college, and
1
institution; and therefore that the pub
| LEGATION of the proceedings in the inves-
tigation 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 plain
| tiff's counsel acquiesced in that view of
| the opinion of this court. The plaintin
himself. when upon the stand as a wit
|
| 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 tend
! ing 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
| q 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 regu-
| larity and authority of the board were
| recognized in the last lines of the chal-
| lenge in these words: LAS an act OF
| Justice to yourselves, to the college and
| to Musician act of justice that no
| North Carolinian should ever seek IN
4 vain-I ask that the triers be polled
| and that no one shall sit on this investi-
CATION who is not absolutely and alto
! gether impartial and uncommitted by
| former deliberate expressions OF his
| views" The manner. too, in which the
plaintiffs counsel conducted the plain
! tiff's case shows that the counsel re-
garded the publication of the defama-
| tory matter as an occasion of privilege.
| The plaintiff in his complaint did not
4 allege any matters, or make any ad-
mission to the effect that the publica-
| ton of the matter was a privileged oc
casion. The simple allegation of the
| complaint was that the publication had
/ been made 1t was, therefore incum-
/ bent on the defendants to show the
| privileged occasion. The plaintiff, how
| ever was not satisfied to introduce evil
dence of the publication of the defama-
| tory matter, and stop, which was all he
| was required to do upon the allega-
| ton 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 oc-
casion 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 evil
| dence 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 con-
| finfng 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 in
| competent if the occasion of the publica-
ton was privileged.
His honor, however in what he calls
! Mote Y" in the record, as distinguished
| from what he designates his charge,
states that he "in the admission of evil
dence 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 de-
termine as to whether there was
| trial there" AS we have said, the
plaintiff having alleged the publication
by the defendants of matter, which was
| and is libelous per sc, and having in