Earle v. Greenville County Memorandum on Behalf of Respondent, Tessie Earle

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The State of South Carolina
IN THE SUPREME COURT

APPEAL FROM GREENVILLE COUNTY 
H onorable J oseph R. Moss, J udge

TESSIE EARLE, as Administratrix of the Estate of 
Willie Earle, Deceased, Respondent,

against

GREENVILLE COUNTY AND PICKENS COUNTY
(of which Greenville County is Appellant and Pic- 
hens County is Respondent)

MEMORANDUM ON BEHALF OF RESPONDENT, 
TESSIE EARLE, AS ADMINISTRATRIX 

OF THE ESTATE OF WILLIE EARLE, 
DECEASED

H arold R. B oulware,
1109% Washington Street, 

Columbia, 20, S. C.,
F ranklin H. W illiams, 

T hurgood Marshall,

Constance B aker M otley,
20 West 40th Street,

New York, 18, N. Y.,
Attorneys for Appellant.



INDEX
P age

Question Involved ........................................................  1

Statement................................................... ................. . 2

Argument . . . . . . . .  ...................................... . 3



1

QUESTION INVOLVED
This appeal raises only one question for determina­

tion by this Court. That question is: Whether there 
are sufficient facts alleged in the complaint filed in this 
action to sustain a recovery, if proved, against Green­
ville County for the “ lynching death”  of Willie Earle 
by his duly appointed administratrix, the respondent 
herein.

8

(1)



2 SUPREME COURT
Earle v. Greenville County et al. 

STATEMENT
Respondent, Tessie Earle, administratrix of the 

estate of Willie Earle, deceased, brought this action in 
the Court of Common Pleas for Greenville County on 
January 28, 1949 alleging in her complaint that Green­
ville County and Pickens County were liable to the 
estate of Willie Earle for a statutory penalty and 
prayed recovery of $5,000.00 against each County 
under the provisions of Article 6, Section 6, of the Con­
stitution of South Carolina of 1895 and Section 3041 
of the Code of Laws of South Carolina for 1942 for the 
death of Willie Earle, a result of his. being lynched in 
said Counties.

The complaint alleged that Willie Earle, prior to his 
death, was a resident and citizen of the County of Pic­
kens, South Carolina; that the said Willie Earle, while 
under arrest and in the custody of officers of Pickens 
County in connection with the alleged stabbing of an­
other citizen, was taken by a large number of citizens 
who, acting in the belief that the said Willie Earle was 
guilty of the crime with which he was charged, carried 
him into Greenville County and there lynched him, and 
there put him to death by beating, shooting, and stab­
bing him.

The respondent, Tessie Earle, administratrix of the 
estate of Willie Earle, deceased, has no interest in this 
appeal from the decision of the Honorable Joseph R. 
Moss sustaining the demurrer of Pickens County and 
overruling the demurrer of Greenville County herein 
except to see that one or the other of the Counties 
against which her original complaint is directed is held 
liable under Article 6, Section 6, of the South Carolina 
Constitution of 1895 and Section 3041 of the Code of 
Laws of South Carolina for 1942.



SUPREME COURT 
Appeal from Greenville County

3

In the Greenville County Court of Common Pleas re­
spondent argued that both Counties herein were liable 
to the estate of Willie Earle by virtue of the provisions 
of the State Constitution and the Laws of 1942, supra. 
The Court of Common Pleas for Greenville County 
held, however, in overruling the demurrer of Green­
ville County and sustaining the demurrer of Pickens 
County that the constitutional and statutory provi­
sions applicable hereto were intended to provide for 
the recovery of only one penalty; that the penalty was 
to be recovered against the County where the “ lynch­
ing death ’ ’ occurred; and that since the lynching death 
occurred in Greenville County, said County is liable in 
this action. Since the only interest respondent can have 
in this appeal is in seeing that one or the other County 
is held liable, respondent respectfully submits that the 
Judge of the Court of Common Pleas for Greenville 
County was correct in holding Greenville County liable 
in this action, and, therefore, this memorandum on be­
half of respondent is in support of the decision of the 
Judge of the lower court.

ARGUMENT
Appellant County concludes in its brief (page 6) 

that “ there can be no doubt that our Constitution and 
statutes give a cause of action for any lynching where 
death ensues.”  Appellant then defines lynching as a 
term which includes the following:

“  (1) That the person lynched be charged with or 
suspected of a crime.

(2) That a mob or combination of persons as­
semble.



4 SUPREME COURT 
Earle v. Greenville County et al.

(3) That the person be seized by the mob or com­
bination of persons either from the custody 
of the law or otherwise.

(4) That summary and illegal punishment be in­
flicted upon the person by the mob because of 
the crime with which he is charged or of 
which he is suspected.”

Yet in the same paragraph in which appellant states 
its conclusion set out above, appellant concludes that:

u * # # the cause of action is not given
against the County where the ‘ death ensues’ to use 
the words of the statute, but against the County 
where the ‘ lynching takes place.’ ”

Appellant agrees that the death of Willie Earle did 
not occur in Pickens County; that it occurred in Green­
ville County at the hands of a lawless mob who had un­
lawfully seized Willie Earle from lawful custody. Yet 
appellant argues that Greenville County cannot be li­
able because the statute only gives a cause of action 
against a County where the “ lynching takes place,”  
and points to Pickens County. If respondent had 
brought her action against Pickens County under the 
reasoning of appellant, respondent would have no 
cause of action under the statutes and Constitution be­
cause no death “ ensued”  in that County as a result of 
a lynching even though Willie Earle was “ lynched”  
in Pickens County. But at the same time, appellant 
argues that respondent has no cause of action against 
it under the statute since no “ lynching”  occurred in 
Greenville County, only a death. In other words, ap­
pellant’s argument is that respondent is not in a posi­
tion to recover against either County. But even this 
argument is refuted by appellant in its own brief when



SUPREME COURT 
Appeal from Greenville County

5

it points out that the purpose of the statute, which is 
to prevent lynchings, is contra to this conclusion and 
that where a lynching occurs and death results the 
legislature clearly intended to give a cause of action 
against the County responsible.

In refuting its own argument that respondent cannot 
recover from either County, appellant appropriately 
points out in its brief that in Kirkland v. Allendale 
County, 128 S. C. 540, 123 S. E. 648, this Court said:

“ Another familiar general principle of inter­
pretation of Constitutions is that a provision 
should be construed in the light of the history of 
the times in which it wTas framed and with due re­
gard to the evil it was intended to remedy, so as to 
give it effective operation and suppress the mis­
chief at which it was aimed.”  (Italics ours.)

Thus the argument of appellant, respondent respect­
fully submits, is entirely fallacious for the reason that 
it would result in the defeat of the purpose of the stat­
ute and the intent of the legislature. Respondent re­
spectfully suggests to this Court that the only question 
on this appeal is whether sufficient facts are alleged, 
to sustain a recovery if proved, to show that a lynch­
ing death within the meaning of the Constitution and 
statutory provision applicable to this ease occurred in 
Greenville County.

I. Purpose of Statutory and Constitutional Pro­
visions.

As pointed out above, appellant’s argument would 
thwart the purpose of the statute and constitutional 
provision by releasing both defendants in this action 
and leave the respondent without remedy contrary to 
the intention of the legislature and the framers of the



Earle v. Greenville County et al.

Constitution. As very suitably pointed out by appellant 
in its brief, the framers of South Carolina’s Constitu­
tion of 1895 realized that the prevention of lynchings 
was a matter with which the State must concern itself 
and, therefore, wrote the following provision:

“ Section 6. Prisoner lynched through negli­
gence of officer—penalty on officer—county liable 
for damages.—In the case of any prisoner lawfully 
in the charge, custody or control of any officer, 
State, County or municipal, being seized and taken 
from said officer through his negligence, permis­
sion or connivance, by a mob or other unlawful as­
semblage of persons, and at their hands suffering 
bodily violence or death, the said officer shall be 
deemed guilty of a misdemeanor, and upon true 
bill found, shall be deposed from his office pend­
ing his trial, and upon conviction shall forfeit his 
office, and shall unless pardoned by the Governor, 
be ineligible to hold any office of trust or profit 
within this State. It shall be the duty of the prose­
cuting Attorney within whose Circuit or County 
the offence may be committed to forthwith insti­
tute a prosecution against said officer, who shall be 
tried in such county, in the same circuit, other than 
the one in which the offence was committed, as 
the Attorney General may elect. The fees and mile­
age of all material witnesses, both for the State 
and for the defence, shall be paid by the State 
Treasurer, in such manner as may be provided by 
law: Provided, m all cases of lynching when death 
ensues, the County where such lynching takes 
place shall, without regard to the conduct of the 
officers, he liable in exemplary damages of not less 
than two thousand dollars to the legal representa-

6_______________SUPREME COURT



SUPREME COURT
Appeal from Greenville County

7

fives of the person lynched: Provided, further, 
That any County against which a judgment has 
been obtained for damages in any case of lynch­
ing shall have the right to recover the amount of 
said judgment from the parties engaged in 
said lynching in any Court of competent jurisdic­
tion.”  (Emphasis appellant’s.)

The legislature, pursuant to this provision, enacted 
Section 3041 of the Code of Laws for South Carolina, 
1942, which provides that:

“ In all cases of lynching when death ensues the 
county where such lynching takes place shall with- 86 
out regard to the conduct of the officers, be liable 
in exemplary damages of not less than two thou­
sand 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 # * *”

It is clear from both of these provisions that the 
framers of the Constitution and the legislature had in 
mind the purpose of deterring those who would take ”  
the law into their own hands and had the intention of 
giving to the legal representative of any victim of a 
“ lynching death”  a clear cause of action against the 
County which should have prevented such death. These 
provisions were made effective in order to curtail the 
very type of tragedy for which the plaintiff in the in­
stant case seeks recovery.

“ That the salutary object of this constitutional 
provision was to promote, through the means pre- gg 
scribed, the observance of certain other provisions 
of the constitutional charter, guaranteeing the citi-



8 SUPREME COURT
Earle v. Greenville County et al.

zen against deprivation of life, liberty or property 
without due process of law, etc., is not open to 
question. # * * In the historical aspect, the
nature of the evil against which this constitutional 
provision was levelled requires no comment.”  
Kirkland v. Allendale Co., 128 S. C. 541.

These provisions, in view of the above tragedy, which 
they were designed to curtail, must be liberally con­
strued, this Court said, so as to give relief in any case 
coming substantially within the spirit of the law.

“ * * # This p r o v i s i o n ,  as apprehended,
should receive a liberal interpretation to the end 
that the remedy prescribed to check the evil aimed 
at should not be denied in any case which comes 
substantially within the spirit of the law.”  Kirk­
land case, supra. See Brown v. Orangeburg County, 
55 S. C. 45.

II. The “ Lynching Death”  occurred m Greenville 
County.

The statutory and constitutional provisions being 
thus clearly intended to give a cause of action in a case 
such as the instant one against the County responsible 
for the death as a result of a lynching, it only remains 
to be decided whether sufficient facts are alleged to 
show in which County such “ lynching death”  oc­
curred. The lower court held, and the respondent 
agrees, that the “ lynching death”  in this case, accord­
ing to the allegations of the complaint, occurred in 
Greenville County. Greenville County argues that only 
a death occurred within its borders and attempts 
through very spurious reasoning to dissociate the death 
from the “ lynching”  and present respondent with an 
imaginary, nefarious dichotomy resulting in the di­



SUPREME COURT
Appeal from Greenville County

9

lemma of no cause of action against either County for 
the very poignant fact of death resulting from a 
lynching.

While in Greenville County, even under the definition 
of lynching set out in appellant’s brief, Willie Earle 
was in fact “ lynched.”  He was still “ seized”  by the 
same mob which had taken him from the lawful custody 
of law enforcement officers of Pickens County. This 
mob, while in Greenville County, still suspecting him or 
believing him to be guilty of the crime with which he 
was charged, administered, in Greenville County, sum­
mary and illegal punishment by beating and shooting 
him. At this point Willie Earle was “ lynched”  in 
Greenville County. In addition, his death “ ensued”  in 
Greenville County.

Therefore, even under the definition of appellant, a 
“ lynching”  occurred in Greenville County and such a 
lynching as the statutory and constitutional provision 
provides a recovery for; i. e., lynching resulting in 
death.

III. Greenville County had the last clear chance to 
prevent the evil which the statutory and constitutional 
provisions are designed to curb.

As appellant so rightly points out in its brief, the 
purpose of the constitutional provision and statute was 
to “ impose a penalty for crime to the end that the com­
mission of the crime might- be deterred.”  Kirkland v. 
Allendale Co., supra (pp. 11-12). Appellant in addition 
cited an appropriate portion of this court’s decision in 
Brown v. Orangeburg Co., supra, to the effect that the 
purpose of the Constitution was to prevent the crime 
of lynching in two ways: “  (1) By visiting upon the of­
ficers of the law the penalties therein mentioned, when



10 SUPREME COURT 
Earle v. Greenville County et al.

a prisoner lawfully in their custody was lynched by a 
mob through their negligence, permission or conni­
vance; and (2) to induce the cooperation of the tax­
payers in preventing the lynching, in order that their 
counties might not become liable to the penalty by way 
of exemplary damages of not less than $2,000.00 to the 
legal representative of the person lynched * # * ”

Appellant then states that it is hard to see why 
punishing the County where the death happened to oc­
cur by assessing exemplary damages against it would, 
as was said in Brown v. Orangeburg Co., supra, “ ren­
der protection to human life, and make communities 
law abiding,”  or how such punishment could “ induce 
the cooperation of the taxpayers in preventing the 
lynching.”  (Appellant’s brief, p. 12.)

Respondent respectfully submits that it is not at all 
difficult to see how punishing Greenville County in the 
instant case would serve the purpose of the statute. 
Greenville County, even assuming Pickens County is 
liable for the “ lynching”  because its officers were neg­
ligent or connived with the mob, had the last clear 
chance to prevent the crime which the statute was de­
signed to curb. But for the negligence of the law en­
forcement officers of Greenville County, and but for 
the lack of vigilance and determination on the part of 
the taxpayers of Greenville County, Willie Earle’s life 
would have been spared even though he had been 
lynched. It is a well-established principle of the com­
mon law that liability for injury will lie, despite the 
negligence of the plaintiff or a third party, where the 
defendant in the case had the last clear chance to pre­
vent the injury complained of and where, because of 
the defendant’s own negligence, advantage was not 
taken of this chance. See 38 Am. Jur. 900, Section 215,



SUPREME COURT 
Appeal from Greenville County

11

Thus, respondent respectfully submits in conclusion 
that even though Pickens County may be liable equally 
with Greenville County, Greenville County neverthe­
less had the last clear chance to prevent the evil which 
the statute and constitutional provision of this State 
are designed to curb. The only County which, without 
question, could have and failed to prevent the lynching 
death of Willie Earle was Greenville County for the 
reason that when Willie Earle met his death as a result 
of a lynching, he was within the jurisdiction of Green­
ville County and not within the jurisdiction of Pickens 
County.

CONCLUSION
Respondent respectfully prays that this Court affirm 

the decision of the Court of Common Pleas for Green­
ville County.

Respectfully submitted,
H arold R. B oulware,

1109% Washington Street, 
Columbia, 20, S. C.,

F ranklin H. W illiams,

T htjrgood Marshall,

Constance Baker Motley,
20 West 40th Street,

New York, 18, N. Y.,
Attorneys for Appellant.