Zimmerman v. McMakin
| Decision Date | 23 March 1885 |
| Parties | ZIMMERMAN v. MCMAKIN. |
| Court | South Carolina Supreme Court |
1. An allegation that " defendant, on January 7, 1882, in the city of S., and in the presence of T. and others, did falsely and maliciously defame and slander the plaintiff, by saying that she had sworn lies on that day before Trial Justice Thomason, on the trial of a cause in which one M. was plaintiff, and one Z. was defendant, thereby injuring the said plaintiff" -states facts sufficient to constitute a cause of action. If more particularity was desired, a motion should have been made, before trial, to require the allegations to be more definitely stated.
2. In action of slander it is not incumbent on plaintiff to show beyond a reasonable doubt , that the defendant uttered the words charged, or their substance.
3. In action of slander it is not necessary to prove the words precisely as laid in the complaint, but it is sufficient to prove them substantially as laid.
4. There seems to be no substantial difference between the words, " public whore," charged in the complaint and " whorish bitch," the words proved at the trial; and it should have been left to the jury to say whether the words proved were used in the sense of those alleged. The Circuit judge erred in charging, as matter of law, that they were not substantially the same.
Before Fraser, J., Spartanburg, March, 1884.
This was an action commenced February 20, 1882. The allegations of the complaint were as follows:
I. That the plaintiff, Rachael Zimmerman, is the wife of the plaintiff, Edward J. Zimmerman.
II. That the defendant, Elizabeth E. McMakin, is the wife of the defendant, Peter C. McMakin.
III. That after the plaintiff, Rachael Zimmerman, became the wife of the plaintiff, Edward J. Zimmerman, the defendant Elizabeth E. McMakin, being then the wife of the defendant, Peter C. McMakin, and being in his presence, and encouraged by him, did, on the seventh day of January, 1882, in the city of Spartanburg, S. C., in the presence of one Isham Turbyfill, and a number of other persons, falsely and maliciously defame and slander the plaintiff, Rachael Zimmerman, by calling her a public whore, whereby said Rachael Zimmerman was injured in her reputation to the damage of plaintiffs, in the sum of twenty-five hundred dollars.
IV. That at the time and place aforesaid, and in the presence and hearing of the persons aforesaid, the said Elizabeth E. McMakin, in the presence of, and encouraged by, her husband, the defendant, Peter C. McMakin, did falsely and maliciously defame and slander the plaintiff, Rachael Zimmerman, by saying that she, the said plaintiff, had sworn lies on that day before Trial Justice W. S. Thomason, on the trial of a cause in which one B. J. McMakin was plaintiff, and Edward J. Zimmerman was defendant, thereby injuring the said Rachael Zimmerman in her reputation, to the damage of plaintiffs as aforesaid.
Wherefore plaintiffs demand judgment against the defendants for the sum of twenty-five hundred dollars, and for costs and disbursements of this action.
The defendants denied each and every allegation of the complaint. Other matters are stated in the opinion. The judge charged the jury substantially as stated in the opinion.
Messrs. Duncan & Sanders , for appellant.
Messrs. Bobo & Carlisle , contra.
This is an action brought by the plaintiffs to recover damages for certain slanderous words alleged to have been spoken by the wife of defendant McMakin, of and concerning the wife of the plaintiff Zimmerman. The slander alleged in the third paragraph of the complaint was in calling Mrs. Zimmerman " a public whore." In the fourth paragraph of the complaint, the slander alleged is that Mrs. Zimmerman " had sworn lies on that day before Trial Justice W. S. Thomason, on the trial of a cause in which one B. J. McMakin was plaintiff, and Edward J. Zimmerman was defendant." The defendants demurred to the fourth paragraph of the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained. At the trial, the testimony on the part of the plaintiffs tended to show that Mrs. McMakin called Mrs. Zimmerman a " whorish bitch," with certain additional adjectives appended, much more forcible than polite, and also that she called her " an infernal, stinking whore," " a whore in most every form." On the part of the defendants, Mrs. McMakin testified that she did not use the words attributed to her above, but that she called Mrs. Zimmerman, a Moorish looking bitch or devil, she did not remember which.
The Circuit judge charged the jury that it was incumbent upon the plaintiffs " to show, by a preponderance of the evidence, beyond a reasonable doubt, that the words, or at least the substance of the words alleged to have been spoken, were used by the defendant; " that if they come to the conclusion that the charge made was that Mrs. Z. was " a whorish bitch," this would not be sufficient to establish the allegation of the complaint, for those words only indicate that she had the tendencies of character of a whore, but do not necessarily import that she was a whore. But if they come to the conclusion that the words used were that she was " a stinking whore," or an " infernal stinking whore," then those words, being substantially the same as the words " " public whore," would be sufficient to support the allegation in the complaint.
The jury having rendered a verdict in favor of the defendants, and they having entered judgment thereon, the plaintiffs appeal substantially on the following grounds: 1. Because of error in sustaining the demurrer. 2. Because of error in charging that the plaintiffs must prove the words as alleged in the complaint, or at least their substance, beyond a reasonable doubt. 3. Because of error in instructing the jury that the words " whorish bitch" were not sufficient to establish the allegation of the complaint.
As is said in several of our cases, even prior to the adoption of the code, the strictness formerly required both in regard to the pleading and evidence in actions for slander has been much relaxed in modern times; and certainly since the adoption of the code, no court can be expected to require a strict adherence to those rigid rules which at one time prevailed. As is said in Pomeroy on Remedies , § 549: " The true doctrine to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegation of these facts are imperfect, incomplete, and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is, not by demurrer, nor by excluding evidence at the trial, but by a motion, before the trial, to make the averments more definite and certain by amendment." This doctrine has been distinctly recognized in this state. Childers v. Verner , 12 S.C. 1.
Now, testing the fourth paragraph of the complaint by this rule, we do not think it was demurrable upon the ground that it did not state facts sufficient to constitute a cause of action. The allegation was that Mrs. Zimmerman had sworn lies before a certain trial justice, on the trial of a cause in which certain persons named were parties. This was in effect a charge of perjury, for it was not simply a charge that Mrs. Z. had sworn falsely, but that the false oath was taken before an officer competent to administer an oath, and in a judicial proceeding, to wit, a trial of a cause. The defendant certainly could not have been misled or misinformed as to the nature of the charge; and if any more particularity in the statement of the facts was desired, then, under the rule which we have cited, the proper mode of attaining that end was by a motion, before the trial, to require the plaintiffs to make a more specific statement. Even under the former and more strict system of pleading, it was held, in the case of Simpson v. Vaughan ( ), that it was not necessary, in an action for slander for charging the plaintiff with false swearing, In this case it did appear, if not in words, certainly by legal intendment, that the oath was taken in a court of justice.
So in a case like the one now under consideration Dalrymple v. Lofton (2 McMull. ,...
To continue reading
Request your trial