Smith v. Smith

Decision Date14 June 1940
Docket Number15101.
Citation9 S.E.2d 584,194 S.C. 247
PartiesSMITH v. SMITH.
CourtSouth Carolina Supreme Court

[Copyrighted Material Omitted]

S E. Haley, of Anderson, and C. Victor Pyle and James H. Price both of Greenville, for appellant.

Williams & Henry, of Greenville, for respondent.


The respondent obtained a judgment against the appellant, J. Harold Smith, in the sum of $425, actual damages, and $425, punitive damages, growing out of an action for slander. The defendant is appealing from this judgment upon numerous exceptions.

The gist of the action is found in the allegations of Paragraph 2 of the complaint, which we here quote: "That on or about June 1, 1938, while the defendant was conducting a religious service before a great audience in Hendersonville, North Carolina, and contriving and maliciously intending to injure the plaintiff in her good name, fame, reputation, and credit, and to bring her into public shame, infamy and disgrace among her friends and acquaintances, and to cause her to be shunned and to be suspected by her friends and acquaintances of unlawful conduct, introduced the Reverend Dean Smith to the assembled congregation and in said introduction falsely and maliciously spoke of and concerning the plaintiff the following false and defamatory words: 'I don't blame him (Reverend Dean Smith) for not living with his wife; she poisoned him'; and also other words of like falsity and defamation."

It is admitted that the alleged defamatory statement related to plaintiff, who is the wife of the Reverend Dean Smith. The appellant by his answer admitted making the alleged slanderous statement, alleged the truth of the statement, and pleaded justification and qualified privilege.

Before discussing the many legal questions presented by the appeal, it becomes necessary to give a brief review of the facts appearing in the record.

The plaintiff married Dean Smith (not related to the appellant) in February, 1927, at Spartanburg. Prior to and at the time of his marriage, and until 1933, he led a wild, reckless, and dissipated life, sometimes at work, but frequently unemployed, and drifting from one place to another. Between 1927 and 1933 the plaintiff separated from her husband ten times.

The evidence shows that the husband, Dean Smith, was converted in 1933, while attending a meeting in Pennsylvania, after which he was licensed to preach as a Baptist minister. In the Fall of 1934 he was the pastor of two small country churches, and resided in Chesnee, in this state, near the North Carolina line. Upon his solicitation, the plaintiff, who was living with her mother in Spartanburg and who earned her livelihood by sewing, agreed to live with him in the home he had established at Chesnee. They lived together about five weeks, and separated finally on the 18th day of December, 1934. The plaintiff testified that the separation came about because her husband wished to go to school. The husband says that their marital life was not peaceful, and that he told the plaintiff that in his opinion she was not the kind of wife a minister should have, and that he could not live with her and do the work he was called to do. That she then said, "I would live with her or I would not live with anybody." It was agreed between the plaintiff and Dean Smith following their last night together, that the latter would take his wife to Spartanburg and leave her at her mother's home there. No breakfast was prepared in the home that morning. It appears that the husband was in the habit of drinking a quart of sweet milk every day, and, according to his evidence, the plaintiff suggested to him, before taking their departure, that he drink his milk, which was in a quart fruit jar on the dining room table. This statement the wife denies. He offered her some of the milk, which had been delivered the day before, which she refused to drink, and he thereupon drank the whole quart. He then took his wife to Spartanburg. Shortly before he reached his home at Chesnee on his return trip, he began to experience violent stomach pains, and was confined to his bed for four or five days. The doctor who attended him testified that he suffered from ptomaine poisoning, or what is generally known as an upset stomach, which results from food poisoning. The doctor says that he made no chemical analysis of the contents of the stomach, but that the patient was not suffering from any chemical poisoning. He also said that he had treated Dean Smith three or four times before for an upset stomach, and on none of those occasions had he been chemically poisoned. But Dean Smith testified he believed the plaintiff had poisoned him by placing poison in his milk.

Plaintiff since the separation in December, 1934, has never lived with her husband, but has been making her home with her mother in Spartanburg. She had repeatedly heard it rumored that she had tried to poison her husband by giving him poisoned milk, but could never trace the rumor to its source.

Four years later, in May, 1938, the appellant, Reverend J. Harold Smith, whose work was principally in the evangelistic field, held a revival meeting in Chesnee, and stayed at the home of Dean Smith. He says that while at Chesnee the deacons of the Baptist Church there told him about the rumors which were being circulated about Dean Smith and his wife; that during the course of the week's meeting at that point at least 100 people told him about the alleged poisoning, and he felt that the separation of Smith from his wife was adversely affecting the work of Dean Smith as a minister. He conceived the idea of effecting a reconciliation, and accompanied by Dean Smith went to Spartanburg to see the plaintiff. While at the home of plaintiff's mother, in the presence of plaintiff and Dean Smith, he engaged in prayer, and asked divine guidance in reconciling the husband and wife. He says that while yet on his knees the plaintiff withdrew from the room, and calling Dean Smith attempted to engage him in a violent quarrel. He is not corroborated in this statement either by the plaintiff or by Dean Smith. On the contrary, the plaintiff and Dean Smith positively testify that their conversation took place on the porch after the prayer was completed. In any event, the plaintiff did not return to live with her husband.

The following month, in June, 1938, the appellant was engaged in holding an evangelistic service, in Hendersonville, North Carolina, at which time Dean Smith was sitting on the speaker's platform together with several other visiting ministers. He requested Reverend Dean Smith to stand up and introduced him to the audience, numbering about 1500 people. He admits making this statement to the congregation: "I don't blame him for not living with his wife; she poisoned him." The evidence of the defense tends to show that he was preaching about the conjugal life of Samson and Delilah, and emphasizing how sometimes a man makes a wrong choice of a wife. The appellant says that he was merely using the Reverend Dean Smith's unhappy plight by way of illustration, and in addition to this he hoped in this way to help him in his ministry, and in a sense rehabilitate him; that he felt that Dean Smith's ministry was being somewhat affected by the separation and the rumors concerning him and his wife, and he wanted the congregation to know that he was Dean Smith's friend.

The appellant disclaimed any intention to slander or hurt the plaintiff in any way, and denied that he entertained any feeling of ill will or malice toward her.

Shortly after the defamatory statement was made the plaintiff heard of it at her home in Spartanburg. She says she did not know what to do, but consulted her sister, who, as a result of their conversation, called the appellant over the telephone. Mrs. Bell, the sister, testified that in the telephone conversation with appellant she asked him if he had made the statement that the plaintiff had poisoned her husband, and he said "he did and did not have any apology whatsoever to make"; and further that he did not feel that he had been rash in making the statement. The following week the plaintiff and her sister, Mrs. Bell, still seeking a correction of the defamatory statement, called upon the appellant at the Spartanburg radio station, where he was scheduled to broadcast. At that time the appellant told them that his information with reference to the poisoned milk came not only from Dean Smith himself, but also from the attending physician, Dr. Cash; and that if they would obtain and bring to him a statement from Dr. Cash to the effect that Dean Smith was not poisoned, he would denounce Dean Smith for having misrepresented the case to him. Appellant in his testimony denied that his information came from Dr. Cash, but refused to make any correction with reference to the defamatory statement. And so far as the record shows, no statement was obtained from Dr. Cash until he testified at the trial that Dean Smith had not been poisoned.

Appellant first assigns error because over his objection the respondent was permitted to testify that $15,000, the amount of damages claimed, would not compensate her for the damages which she had sustained.

The elements of damage in an action of this kind are humiliation, wounded feeling, injury to reputation, and other elements. Respondent testified that her friends had snubbed her, and that she had suffered in her dressmaking business as a result of the defamatory words, which, of course, were actionable per se, and the law presumes general damages.

It is claimed, however, that the respondent was permitted to testify as to her damages, without giving a single fact which would justify them. The case of Cothran v. Knight, 45 S.C. 1, 22 S.E. 596, which is cited...

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    ...intended to cause bodily injury. See Mellen v. Lane, 377 S.C. 261, 277, 659 S.E.2d 236, 244 (Ct.App.2008) (quoting Smith v. Smith, 194 S.C. 247, 259, 9 S.E.2d 584, 589 (1940)); Law v. S.C. Dep't of Corr., 368 S.C. 424, 440, 629 S.E.2d 642, 651 (2006). In the case of a battery, a person argu......
  • Rutledge v. St. Paul Fire and Marine Ins. Co.
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    ...In South Carolina, a party having the burden of an issue ordinarily must carry it by a preponderance of the evidence. Smith v. Smith, 194 S.C. 247, 9 S.E.2d 584 (1940). There are, however, exceptions to the general rule. See M.S. Whaley, Handbook on South Carolina Evidence at 160-61 (1957);......
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