Pooler v. Smith

• Decision Date: 27 November 1905
• Citation: 52 S.E. 967,73 S.C. 102
• Parties: POOLER et al. v. SMITH.
• Court: South Carolina Supreme Court

52 S.E. 967

73 S.C. 102

POOLER et al. v. SMITH.

Supreme Court of South Carolina

November 27, 1905

Appeal from Common Pleas Circuit Court of Darlington County Aldrich, Judge.

Action by James Pooler and others against Phyllis Smith. Judgment for defendant, and plaintiffs appeal. Affirmed.

Plaintiffs appeal on following exceptions:

"(1) His honor erred in admitting, over plaintiffs' objection, upon cross-examination of the witness Pooler evidence of cohabitation and general repute of the defendant and the intestate Edwin Ervin: (a) Because it was collateral testimony, and not responsive to anything drawn out in chief examination. (b) Because it was irrelevant and incompetent as proof of marriage between Edwin Ervin and Phyllis Smith.

(2) His honor erred in admitting, over plaintiffs' objection, upon cross-examination of the witness Pooler testimony to the effect that the intestate acknowledged Henry and Ed. Ervin, Jr., as his sons: (a) Because it was incompetent as proving their legitimacy, so as to inherit his estate. (b) Because they are not parties to this action, and are claiming no interest. (c) Because it is not responsive to anything stated by the witness in chief, nor is responsive to any of the issues raised by the pleadings.

(3) It being clearly shown that the witness William Harvey was sacrificing the plaintiffs and was hostile, his honor erred in not allowing plaintiffs to show that the witness had made contrary statements just before the trial, to wit, by not allowing him to answer the following question 'Didn't you at that time say that your recollection was clear that these children were born prior to their marriage?'--the error being this: He denied the plaintiffs the right of protection before the jury, showing that the witness had recently been brought under the influence of the defendant, and was testifying contrary to what the plaintiffs expected. (b) Because it led the jury to believe that the witness' version was substantial, regardless of any contradictory statements he had made.

(4) His honor erred in admitting, over plaintiffs' objection, upon cross-examination of the witness Pooler, evidence of cohabitation and general repute of the intestate Edwin Ervin and Phyllis Smith, as proof of marriage between them: (a) Because the principal fact of such marriage had not been established by any testimony before the jury. (b) Because it led the jury to believe that cohabitation and general repute was sufficient to show the existence of marriage in a case of this kind. (c) Because it led the jury to believe that, even though an actual marriage may have never occurred, yet the jury may infer it from such testimony. (d) Because it was merely hearsay, and not almissible.

(5) Because his honor erred in charging the jury the following: 'Phyllis Smith, according to the allegations of the complaint, was not the widow of Edwin Ervin, the intestate. Phyllis Smith alleges that she was, or denies the allegations of the complaint. She denies the charge that she was not his wife and his widow.' (a) Because, it is respectfully submitted, there is no such allegation in the complaint and no such denial in the answer. (b) Because it is a charge upon an assumed fact.

(6) Because his honor erred in charging the jury the following language: "There is an allegation, you recollect, that he left no children. The answer of the defendant denies that. Now, that is a question that you must pass upon.' (a) Because there is no such allegation in the complaint or answer. (b) Because if there were such children, they were not claiming and are not parties to the action. (c) Because there was no competent testimony to base such charge upon.

(7) His honor erred in charging the jury in the following language: 'As to the legitimacy of a child, if you bring up that question, it is simply a question of fact; but the law in this state is, for the peace and repose of families, and for the good of society, that a child, the issue of a man and woman lawfully married to each other, are presumed to be legitimate children. And that presumption prevails.' (a) Because it ignored the necessity of considering whether such children were born prior or subsequent to the marriage. (b) Because it led the jury to believe that although the children were born prior to marriage and illegitimately, yet, by a subsequent marriage of the parties, such children became legitimate. (c) Because the whole and undisputed testimony in this case showed that the children were born long before marriage, if there were ever any marriage. (d) Because it was, at least, in effect, a charge upon the facts, and in violation of Const. 1895, art. 5, § 26.

(8) His honor erred in refusing to charge the plaintiffs' first request to charge: Because it embodies a sound proposition of law and was applicable to the case. The request was as follows: '(1) That, where facts are shown which are sufficient to throw doubt upon the reality of a transaction, the burden of proof is shifted to those who know the truth, and where they fail to furnish information within their knowledge the presumptions of law are against them.'

(9) He committed error of law in stating to the jury the following isolated words: 'That, in some instances, may be a correct statement of the law, but an allegation of marriage or an allegation of title is one of those allegations that when plaintiffs put them in their pleadings, they must prove them by a preponderance of evidence.' Because all statements in

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