The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-06-16
Plaintiff Gattis Rests His
Case.
Continued From Page Three


What testimony was there that Mr..
Gattis kept a store where indecent
gossip was retailed? Not a scintilla.
Here was controversy being waged
between giants: because a man goes
there to testify in response to a sub
poena from the head of the Board of
Trustees, was he to be Villifed and
abused?
Although n man may be in a privi-
legged position, speeches of counsel
villifying the humblest citizen are not
a nart OF the court record. They
cannot be published with impunity.
We say that there is abundance of
evidence of malice to go to the jury.
I'VE are not suing upon what went
on at Durham. we are suing on the
publication" We admit that if the
communication was privileged, falsity
would not be sufficient.
If the defendants had, however. the
opportunity TO know the truth and
published the matter recklessly there
was malice.
If the communication be privileged
and in good faith the burden of proof
is on the plaintiff to show malice; if,
however. the defendant had the OPP
portunity TO know the truth, even
slight evidence was sufficient.
What is malice is a question for
the Judge; the jury determines wheth-
er or not there is malice. Only slight
evidence is necessary to put the issue
TO the jury.
The distinction in malice in fact
and malice in law is this: The
first is a positive attempt to injure,
the second arises when the fact is
shown that statements are made reck-
.lessly and without probable cause.
even if the statement was honestly
made. The bona fides must be tested
by the jury.
Even if Kilgo in his heat had
thought that he had been maligned.
cooling time of a month had inter
vened before publication of the
pamphlet. He had plenty of time TO
see whether he was i'm error before
he put the matter in permanent form.
The question is did the defendant
honestly believe what he said. Who
believes Kilgo believed it? If the de-
PENDANT had sources of information,
of which he wilfully failed to avail
himself, there was malice. Irrelevant
charges. even on privileged occasions.
constitute malice.
Has there been any contradiction of
what the plaintiff Gattis testified to?
If these things, as testified to by
Gattis and other witnesses are true,
knew Mr.. Gattis and lived i'm the same
town, is there any ground TO suppose
that DR.. Kilgo thought he was speak
ing the truth? DIR. KiIgo's statement
was false when he made it, and
whether he knew ii to be false or not
he had plenty of time TO investigate
and he knew ii to be false when he
made -
In defining malice it is competent
to consider the relations of the
parties.
DR.. Kilgo had another reason ex-
cept Mr.. Gattis' testimony for his
TRADE. He argued that the fact that
DR.. kilgo asked whether he had not
ceased TO visit PLAINTIFFS store indi-
Gated ill-feeling for other reasons
than the plaintiffs testimony.
There was sequence in the pub
LEGATIONS. First. the resolution to print
the proceedings, second. to have the
pamphlets distributed. third. the tes-
timony of Whitaker that he was au-
thorized TO print in the Morning Post
supplements with different names on
them TO be sent to other papers for
distribution.
Plaintiff has fixed Kilgo and Duke
with being members of the Board of
Trustees and the executive committee
and Eilgo with having sent the check
to the Post for the publication. The
matter was consummated with the
aid and knowledge of DR.. Kilgo all
through and with the cOnnivance and
assistance of Mr.. Duke.
Another evidence of malice is the
very sustained plea of justification,
which is also an aggravation of dam
ages They come in and swear that
the libel is true and then don't dare
to try to prove it. Sections 7 and s
of the Kilgo answer pleaded iustifica
ton. Without proof they indicated
malice. 1t is a fact for the jury to
consider IN each case whether the
plea of justification was put in in good
or bad faith.
Admit for the sake of argument
that Kilgo said what he did in the
heat of argument, the law says that
a failure TO retract or apologize is an
evidence OF malice.
In that very speech DR.. Kilgo said
that was the way it appeared TO him
then" but that If he found out 1t
wasn't time he would retract Yet
here he is today repeating the libel.
The law is very tender of the repu-
tation of tradesmen. Because for the
most part, tradesmen are poor. Their
character was their one asset. That
was Mr.. Gattis' position. They may
boot at him, talk about his 10x10
shop, but he is Untitled to as much