The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-11-23
It IS A DOC FALL
But Gattis is the Under
Dog and Loses to Duke
and kilgo.
COURT is TWO TO TWO
Justices Walker and Hoke Say Case
Should Go to Jury. Justices Con.
nor and Brown Uphold Moore.
The Chief Justice Did Not
Sit in the Case.


The case of Rev. T. j. Gatts vs.
Rev. John C. Kilgc and Mr.. b. y.
Duke one of the most celebrated cases
in the annals Of North Carolina, goes
Mr.. Gattis. being the under dog in the
fight, has to pay the costs in the case,
after having won the only two times
the case has been tried by jury
In the Supreme Court yesterday
(Chiet Justice Clark not sitting) the
Supreme Court evenly divided upon
the appeal from Judge Moores ruling
that there was not, under Justice
Montgomery decision. sufficient evil
dence to go to the jury. Judge Moore
gave that ruling with hesitancy, feel
ing bound by Justice Montgomery s
erroneous opinion that set aside the
$4,000 verdict and ordered a new
trial. 1t is reported that Justices Wal
ker and Hoke che two western men
on the bench) voted TO oVer-rule
Judge Moore and let the case be tried
by a jury, while Justices Brown and
Connor (the two eastern men on the
beach, voted TO affirm Judge Moore.
AS Chief Justice Clark did not sit in
the case. under the rules, if the court
lower court is affirmed. Under this
rule, though Judge Moores decision
is not really affirmed by a majority
of the court, Rev. MIR. Gattis loses out
and his case can never have hear
ing on its merits by jury.
Since this case has been on the
docket thirty-two mem have passed
upon it as sworn jurors or judges, and
of the thirty-two only three have held
Al. 4 II
Kilgo.
On the first trial the Superior court
judge let the case go to the jury and
they unanimously returned a verdict
for Mr.. Gattis of 100000. Thus thir
teen men held against Duke anG
Kilgo. On the second trial Judge
Shaw held there was evidence to go
to the jury and the twelve held it suf-
licient To warrant d verdict for $15,-
900. ON appeal each time the four
judges sitting oyer-ruled the plea that
there was no evidence though giving
a new trial.
On the third trial Judge Moore heid
that there was no evidence. On APP
peal, two judges held With him.
Here is the way it stands:
Holding There Was Evidence.
Judge and jury first trial 10
Judges on appeal =.
uuSe anu jury, second tIldI -
Two judges on third appeal :. :. 2
Total 80
The four judges on first and second
appeal evidently thought the evidence
was not sufficient for the verdict rem
dered and set ii aside but they did not
say there was no evidence.
Holding There Was no Evidence.
Judge at third trial :. :. =. ..
Two judges on appear :.
The Per Curtain Opinion
The per curiam opinion handed
down yesterday is as follows:
ThOs. ). Gattis. appellant. vs.. j. c.
KilgO ct al.
ArgO x Shaffcr, &. Il. Watson, A. n.
Hicks, 5. VI. Gattis. and j. y. Hold
ING, for plaintiff
Winston < Bryant, Il. 5. Register. r. L.
Hicks. L. L.. Fuller and AycOck 4
Daniels. for defendant.
Per Curtain. The Court is of the
opinion that the investigation of the
charges against defendant KilgO be-
fore tho Board of Trustees of Trinity
College was not absolutely but quail
fiedly privileged and SO was the publ
cation of the proceedings in the
pamphlet known in the case as the
"Blue Book" which was intended for
circulation amcng the patrons of the
college and among those likely to be-
come its patrons. Any statement or
communication is conditionaly privi-
lodged when made bona fide about
something in which Cd the speaker
has an interest or duty: CD the
nearer has "a corresponding interest or
duty, and CD when the statement or
communication is made in protection
Of that interest OF in performance Of
that duty. 1t must be uttered in the
honest belief that it is true. The
standard of privilege is the standard
of the law, not of the indiyid
ual and the privilege depends, not
on what the individual may have sup
posed to be his interest or duty. but
upon what judge decides. as matte,
of law, his interest or duty to have
been The Court determines what is
and what is not privileged. The effect
of the privilege is TO cast on the plain
tiff the burden of showing malice on
the defendants part in uttering or
publishing the alleged slanderous
words # one exceeds the privilege, its
protection to him ceases and the ordi-
nary rules OF liability apply Whether
he has exceeded it and whether he
was actuated by malice are ordinarily
questions for the jury. l Jaggard on
Torts. $50. 531. Proceedings before
! school boards. religious, fraternal and
! like organizations are within the class
| having only qualified privilege and
| are protected by such privilege When
| it is properly used and not abused.
! / Jaggard $50 Absolute privilege is
generally confined TO judicial and leg
/ islative proceedings and official com
| munications of a public nature. WheE
] the interest Of the public is directly
1 concerned. | Jagoard. $40 ct seq
! The plaintiff having declared on the
! publication Of the pamphlet must
| show that the defendants were
| prompted by actual or express malice
| in making the publication. There Is
| no cause of action alleged against the
defendant Kilgo for Islander in making
his speech before the board, nor Is
| there alleged against the defendants,
! Duke and Iiloo for libel in publish