Green v. Greenville County
| Decision Date | 11 June 1935 |
| Docket Number | 14088. |
| Citation | 180 S.E. 471,176 S.C. 433 |
| Parties | GREEN v. GREENVILLE COUNTY. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenville County; Wm. H Grimball, Judge.
Action by Mary Green, as administratrix of the estate of George Green, deceased, against Greenville County. From a judgment for the plaintiff, the defendant appeals.
Reversed and remanded for new trial.
H. K Townes, of Greenville, for appellant.
W. E Bowen and Joseph A. Tolbert, both of Greenville, for respondent.
The presiding judge, Hon. Wm. H. Grimball, directed a verdict for the plaintiff in this action against Greenville county in the sum of $2,000. The action was instituted to recover exemplary damages in the sum of $5,000 for the alleged lynching of the plaintiff's intestate, George Green, on November 16 1933. The appeal questions the correctness of that ruling, and the issue for us to decide is, Did the trial judge err in directing a verdict for the plaintiff?
The action was brought under article 6, section 6, of the Constitution of 1895, and under the statute enacted in conformity therewith (section 3041, vol. 2, S.C. Code 1932), which provides as follows: "In all cases of lynching when death ensues the county where such lynching takes place shall, without regard to the conduct of the officers, be liable in exemplary damages of not less than two thousand dollars, to be recovered by action instituted in any court of competent jurisdiction by the legal representatives of the person lynched, and they are hereby authorized to institute such action for the recovery of such exemplary damages," etc.
Before discussing the evidence adduced at the trial in this case, we refer to a prior decision of this court in which the term "lynching" was defined, to which definition we adhere.
In the case of Kirkland v. Allendale County, 128 S.C. 541, 123 S.E. 648, 650, the following definition was approved and adopted:
It appears from the testimony that George Green, the person alleged to have been lynched, was not in the custody of any law officer, nor was he a prisoner at the time he was killed. This court held in the case of Brown v. Orangeburg County, 55 S.C. 45, 32 S.E. 764, 44 L. R. A. 734, that a county is liable in damages to the personal representatives of a person lynched within her borders by a mob, whether such person be at the time a prisoner or not. Therefore, this question, under the facts, is not before us.
The contention made by the defendant-appellant in the trial in the court below, and now properly before us on appeal is, that his honor, the circuit judge, erred in not submitting the case to the jury under proper instructions as to what constitutes a "lynching," and what is necessary to be proved in order to sustain such allegation, the contention being that the testimony was susceptible of two inferences, (1) Was George Green killed by a mob by reason of his having been charged with or suspected of some crime? or (2) Was he killed on account of the bitter feeling aroused against him growing out of his refusal to vacate the premises occupied by him but owned by one Mr. James.
Under the holding of this court it was a matter of vital importance to the plaintiff, in order to establish her cause of action, that she prove that at the time her husband was killed he was charged with or suspected of having committed some crime, and that death was inflicted upon him by the mob because of said crime or suspicion of crime. In other words, the burden was upon her to prove by the preponderance of the evidence that he was "lynched" as herein defined.
A brief review of the testimony is now in order.
Other than the physician, who testified to the bullet wound which caused the death of George Green, there were no witnesses for the plaintiff except herself. She testified that she and her husband, George Green, lived at or near Taylors, in Greenville county, and that on the night of November 16, 1933, a white robed body of men, masked and hooded, came to their house, broke the latch on the front door and the back door, entered therein cursing, and that ""some of them said they come after him (George Green) for selling liquor." Within a few moments after this occurred, George Green was shot to death, without the slightest legal provocation or justification so far as the testimony shows.
The plaintiff admitted on the trial below that shortly after the killing of George Green she testified at the coroner's inquest, but said nothing in her testimony about any member of the mob mentioning liquor prior to or at the time of the killing. She also admitted that later on she testified in the court of general sessions for Greenville county, when certain parties were then and there on trial, charged with the murder of her husband, and that in her testimony on that trial she "didn't open her (your) mouth about liquor."
It is admitted, and was developed in the testimony of Mary Green, that her husband had been a tenant on the farm of Mr. James in Greenville county, and that a very serious dispute had arisen between them over the possession of the house which George Green and his wife, Mary Green, occupied; and that bitter feeling had been aroused against him by Mr. James because of Green's refusal to vacate the premises, and that at the time of the trial of the case at bar a cause was then pending in the court of common pleas for Greenville county, brought by Mary Green against the estate of Mr. James, who apparently had died in the meantime, seeking the recovery of damages in the sum of $15,000, it being alleged in her complaint as the basis of her cause of action that Mr. James, in the effort to dispossess George Green, had inspired the attack upon him by the masked mob, which resulted in the death of Green. A portion of her testimony follows:
Again on cross-examination by Mr. Townes:
"Q. You admit all that, and you admit when the case was tried here prosecuting men for killing your husband that you didn't mention about anything being said about liquor, you admit that, don't you? A. Yes, sir.
Q. In the former trial, yes, you do; and now you come into Court and you say you think something was said about it; that is your testimony? A. I don't know who it was, but I heard it.
Q. Well, now, there was a lot of confusion there that night, was there not confusion, noise, fuss, cursing? A. Yes, sir, there was a lot of fuss.
Q. And now it occurs to you that maybe they said something about liquor; that is correct, is it? A. Yes, sir, they was somebody said something about liquor; you know I don't know who they was."
And she further testified:
"Q. Now, Mary, there was not any warrant out for your husband at all, no warrant out for him? A. No, sir.
Q. Nobody had him arrested; and nobody you ever heard of accused him of anything? A. No, sir.
Q. And even Mr. James had not accused him of violating any law at all, had he, the man you sued? A. No, sir, not as I know of.
Q. And the only trouble between him and Mr. James was he didn't get out of the house? A. He didn't get out of the house...
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