Bryant v. Smith
| Decision Date | 08 July 1938 |
| Docket Number | 14717. |
| Parties | BRYANT v. SMITH et ux. |
| Court | South Carolina Supreme Court |
Appeal from Richland County Court; A. W. Holman, Judge.
Action by B. D. Bryant against Enoch Smith and wife for assault and battery. From an order overruling a demurrer, defendants appeal.
Affirmed as modified, and the cause remanded.
C. T Graydon, of Columbia, for appellants.
A. M Deal, of Columbia, for respondent.
The respondent brought this action in the Richland County Court to recover damages for an alleged assault and battery. This appeal is taken from an order overruling the demurrer interposed to the complaint.
We will let the complaint speak for itself. It is therein alleged:
"1. That plaintiff is a citizen of Spartanburg County, South Carolina, a Confederate veteran, a member of the South Carolina Division, United Confederate Veterans, and is eighty-nine years of age.
2. That Enoch Smith and his wife, Mrs. Enoch Smith, are citizens of Richland County, South Carolina.
3. That at the Fifty-fifth Annual Reunion of South Carolina Confederate Veterans, held at Columbia, S. C., July 30, 31, and August 1, 1936, Gen. E. N. Yarborough, Commander of the South Carolina Division, was, on motion, authorized to appoint delegates to attend and cast the official vote of the South Carolina Division at the next General Reunion of United Confederate Veterans; and that at the First Fall Reunion of said South Carolina Division, held at Columbia, S. C., October 20-21, 1936, he announced the appointment of B. D. Bryant, W. E. Riley and E. N. Yarborough as such official delegates, and these appointments, on motion, were unanimously approved by the veterans attending said reunion.
4. That at the General Reunion of United Confederate Veterans, held at Jackson, Mississippi, June 11, 1937, the said official delegates, B. D. Bryant, W. E. Riley and E. N. Yarborough, attended and cast the vote of the South Carolina division as such delegates, and that when it came to the election of a Commander-in-chief of the United Confederate Veterans for the ensuing year, said delegates cast the vote of the South Carolina division for Gen. Lee, and Gen. Lee, having received a majority of the votes cast, was thereby duly elected.
5. That thereupon supporters of Gen. Claypool, who had been defeated in the election for commander-in-chief by Gen. Lee, created considerable disorder in the meeting, and a motion was made to throw out the vote of the South Carolina division. Gen. Atkinson, presiding, put the motion, and called for the ayes, and then the noes. While the vote was being taken on the noes, by a standing vote, Enoch Smith called loudly and repeatedly, And thereupon his wife, Mrs. Enoch Smith, left his side and rushed over to Gen. Summer, commander of the First South Carolina Brigade, knocking over several chairs and a table, put her hands on his shoulders and pushed him down, and then rushed to plaintiff, B. D. Bryant, and struck him on his face, shocking and dazing him and knocking his glasses on the floor.
6. That defendant Enoch Smith by his language and conduct instigated, urged and abetted his wife, Mrs. Enoch Smith, to make the physical assault upon the plaintiff set out in Paragraph 5.
7. That by reason of the physical assault made upon him by Mrs. Enoch Smith the plaintiff suffered severe physical pain, great nervous shock, mental anguish and humiliation, which necessitated his having to be carried immediately out of the meeting hall and to the headquarters room by his grand-daughter and several other ladies, where he was laid upon a reclining chair and given medical treatment; and that by reason of said physical assault made upon plaintiff willfully, wantonly, maliciously and without any provocation whatsoever plaintiff has been injured and damaged in the sum of Three Thousand ($3,000.00) Dollars."
Appellants contend that the complaint does not contain facts sufficient to constitute a cause of action, so as to hold Enoch Smith liable, as a matter of law, for the assault and battery therein charged. In the order overruling the demurrer, the lower court held, among other things, that the husband, Enoch Smith, because of the marital relation, was liable, either as a several or joint tort-feasor with his wife, the other named defendant. As supporting this conclusion, he cites the case of Edwards v. Wessinger, 1903, 65 S.C. 161, 43 S.E. 518, 95 Am.St.Rep. 789, which holds that if a wife commits a tort in the presence of her husband, it is presumed that she is coerced by him, and he alone is liable therefor; but if she acts deliberately, freely and independently, it is their joint tort, and they are jointly liable.
Upon due application, the appellants were granted permission to attack the decision in Edwards v. Wessinger, supra, with the view of having it overruled and reversed. It is obvious, that if this case, and several prior cases upholding it, still announce the true doctrine to be followed in this state, then the lower court must be sustained on the point at issue.
It is insisted by the appellants that the common-law liability of the husband for the torts of his wife, committed by her without his participation, has been abrogated by law in South Carolina. This contention is rested upon our statute appearing in the Code of 1932 as Section 400, and upon similar legislation, previously enacted, emancipating married women from their common-law disabilities. This contention is sound, and must be sustained.
A review of many cases from other jurisdictions shows that the disposition of the courts in the construction of statutes relating to the rights of married women is to hold tenaciously to the rule that statutes in derogation of the common law must be strictly construed. We have announced that rule in many cases.
The reasons for holding the husband liable for the torts of his wife under the common law appear when the general law of husband and wife is considered. He had almost absolute control over her person, so far as it was amenable to control; he was entitled to her services, and consequently to her earnings; he had a right to her goods and chattels; he could reduce her choses in action to possession during her life; he could collect and enjoy the rents and profits of her real estate. Thus he had dominion over her property and person. She was in a condition of complete dependence. She could not contract in her own name; she was bound to obey him at the peril of corporal chastisement; and her legal existence was merged in his, so that they were termed and regarded as one person at law. Martin v. Robson, 65 Ill. 129, 16 Am.Rep. 578; Norris v. Corkill, 32 Kan. 409, 4 P. 862, 49 Am.Rep. 489; Flesh v. Lindsay, 115 Mo. 1, 21 S.W. 907, 37 Am.St.Rep. 374.
The fundamental theory underlying the law of coverture is the legal fiction of the oneness of husband and wife, the husband being the one. In harmony with the prevailing common-law principles, our Court, in Edwards v. Wessinger, supra, approved the following rules with reference to the liability of the husband for the torts of the wife (43 S.E. page 520):
"(1) If the tort is committed in the presence of the husband, and nothing more appears, it is his sole tort, as the wife is considered to have acted under his coercion.
(2) If the tort is committed in his presence, but she appears to have acted deliberately and freely, it is their joint tort.
(3) If the tort is committed in his presence, and against his will, it is her tort, and he is liable with her.
(4) If the tort is committed out of his presence, but by his direction, she is jointly liable with him.
(5) If the tort is committed out of his presence, and without his knowledge or consent, he is liable with her."
Thus the rule of common-law liability is still in force in South Carolina; unless abrogated by Sec. 400 of the Code, and enactments of a similar character.
Our statute must be construed in the light of previous legislation in this State, which has already gone very far towards complete emancipation of a married woman from all the common-law disabilities of coverture. Those statutes provide that married women shall have the right to own property of every kind and description, and hold the same in their own right, and convey it as a femme sole; that they shall have the right to enter into contract with reference to their separate property, and sue and be sued with reference thereto.
Secs 8574 and 8575, Code 1932. By Sec. 8572 it is provided that the real and personal property of a married woman, whether held by her at the time of...
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