Nolf v. Patton

• Court: South Carolina Supreme Court
• Writing for the Court: GARY, C.J.
• Citation: Nolf v. Patton, 114 S.C. 323, 103 S.E. 528 (S.C. 1920)
• Decision Date: 28 June 1920
• Docket Number: 10447.
• Parties: NOLF ET AL. v. PATTON ET AL.

103 S.E. 528

114 S.C. 323

NOLF ET AL. v. PATTON ET AL.

No. 10447.

Supreme Court of South Carolina

June 28, 1920

Appeal from Common Pleas Circuit Court of Barnwell County; John S Wilson, Judge.

Action by John Nolf and others against John Patton and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Following are the exceptions referred to in opinion:

Exceptions.

(1) That his honor erred in charging the jury that the burden was on plaintiffs to prove that Ralph Nolf was the survivor the error being that if plaintiffs proved either that Ralph Nolf was the survivor or that Ralph Nolf and his wife died at the same time, in which event she could not inherit from him the plaintiffs would be entitled to recover.

(2) That his honor erred in charging the defendants' first and fourth requests of charge, without having charged the jury: "And in the absence of such proof the rights of property as by succession, etc., are to be settled on the theory that ail died at the same time."

(3) That his honor erred in charging the defendants' sixth and ninth requests of charge, the error being in requiring the plaintiffs to establish survivorship; the law being that in the absence of proof as to survivorship the rights of property as by succession are to be settled on the theory that all died at the same time, and in such event the wife could not inherit from the husband, nor the husband from the wife.

(4) That his honor erred in the outset in his charge to the jury: "This is a case of where the whole family was wiped out--husband, wife, and child. Both sides claim that the house was burned down and that the bodies were burned. I don't know whether it was the act of some criminal, or what; I don't know; but anyway this is certainly a very sad case to try"--thereby intimating to the jury that the burning of the Nolf home might have been the act of some criminal, which was prejudicial to the plaintiffs upon the theory that if a criminal committed the act the husband would in all likelihood have been first assaulted, and leaving the jury to infer from such intimation that the wife survived, whereas in truth and fact there is not a particle of evidence in the case to sustain such theory, and his honor erred in so stating to the jury, which was never corrected in his charge as a whole.

(5) That his honor erred in charging the first, second, third, fourth, fifth, and sixth requests of charge submitted by defendants' counsel, and that by so doing his honor intimated and so charged the jury that the plaintiffs must prove their case by the preponderance of the evidence, and that he who asserts survivorship must establish that fact by the greater weight of the evidence; the law being that in a common disaster to which there were no eyewitnesses the jury was to arrive at the question of survivorship from the facts and circumstances surrounding the same, and to render a verdict from such circumstances surrounding the death of the persons as are in evidence, and that a finding or verdict that one of the persons survived the other may thereby be warranted as a question of fact, though there is no direct or positive evidence upon the question.

(6) That his honor, in charging the plaintiffs' first request as follows, "Where the circumstances surrounding the death of the person are in evidence, a finding or verdict that one of the persons survived the other may thereby be warranted as a question of fact, though there is no direct or positive evidence upon the question," charged the law applicable to the case; and by charging the defendants' first, second, third, fourth, fifth, and sixth requests of charge, which was not the law applicable to the case, he thereby destroyed the plaintiffs' first request of charge, which had the effect of reversing, annulling, and bringing to naught plaintics' first request of charge.

(7) That his honor erred in charging the defendants' seventh, eighth, and tenth requests of charge, whereas his honor should have charged the jury that, under the conditions of the policy, "if any beneficiary die before the insured, the interest of such beneficiary shall vest in the insured, unless otherwise provided herein."

(8) His honor erred in instructing the jury as follows: "Now here is the form of your verdict. If you find for the plaintiffs, that is, if you find that the husband was the last to die, and survived the wife, your verdict will be on this, 'We, the jury, find for the plaintiffs that they are the heirs and distributees at law of George Ralph Nolf, who was the last survivor in the common disaster.' If that is your verdict, sign your name, Mr. Foreman. If you find that that is not the case, but that the wife survived, say, 'We, the jury, find for the defendants that they are the heirs and distributees at law of Getty Patton Nolf, who was the last survivor in the common disaster' "--in that said instructions prohibited the jury from finding for plaintiffs in case they should find both parties died at the same time in the common disaster, in which event neither should inherit from the other.

(9) That his honor erred in not granting plaintiffs' motion for new trial, for the reason that there was no evidence in the case from which an inference could be drawn that the disaster was committed by a criminal, or that Ralf Nolf was murdered, or that his wife survived him.

(10) That his honor erred in not granting plaintiffs' motion for a new trial, for the reason that there was not sufficient evidence adduced on the part of the defendants from which it could be inferred that Getty Patton Nolf survived Ralf Nolf.

(11) That his honor erred in not granting plaintiffs' motion for a new trial, for the reason that there was not sufficient evidence to warrant a finding in favor of the defendants.

(12) That his honor erred in not granting a new trial, for the reason that the verdict of the jury was not responsive to the ruling of law by his honor, in that the jury, in order to find that Getty Patton Nolf survived Ralph Nolf, had to presume that the said Ralph Nolf was murdered, whereas, under the well-settled principles of law, murder cannot be presumed.

J. O. Patterson, Jr., of Barnwell, for appellants.

Harley & Blatt and Charles Carroll Simms, all of Barnwell, for respondents.

GARY C.J.

The following statement of the facts appears in the record:

"This action was commenced April 14, 1919, by the above-named plaintiffs, who are the father, brothers and sisters, nieces and nephews of George Ralph Nolf; the defendants being brothers and sisters of Getty Patton Nolf the wife of the said George Ralph Nolf. On December 7, 1917, in the early morning, between 4 and 5 o'clock, the house in which the said George Ralph Nolf and his wife and baby resided was destroyed by

fire, and the said George Ralph Nolf and his wife and baby were burned to death and beyond recognition in the said conflagration. The house was a four-room house with an 'L' on the back in which was located the kitchen with a piazza on the 'L.' The back room on the main body of the house was the dining room; the other back room in the main body of the house was the bedroom of Mr. Nolf and his wife and baby, which opened into the dining room. After the house had burned down and had cooled off sufficient to make a search for the bodies of the Nolf family, the wife and baby were found in the kitchen near the stove; the body of Mr. Nolf,

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