Vermillion v. Woman's Coll. Of Due West, (No. 9366.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: HYDRICK, J
• Citation: 88 S.E. 649
• Docket Number: (No. 9366.)
• Decision Date: 04 April 1916
• Parties: VERMILLION. v. WOMAN'S COLLEGE OF DUE WEST.

88 S.E. 649

VERMILLION.
v.
WOMAN'S COLLEGE OF DUE WEST.

(No. 9366.)

Supreme Court of South Carolina.

April 4, 1916.

Gage, J., dissenting in part.

Appeal from Common Pleas Circuit Court, Abbeville County; Thos. S. Sease, Judge.

Action by J. W. Vermillion, administrator, against the Woman's College of Due West. Judgment of nonsuit, and plaintiff appeals. Reversed.

Cothran, Dean & Oothran, of Greenville, and Win. N. Graydon, of Abbeville, for appellant.

Grier, Park & Nicholson, of Greenwood, and Wm. P. Greene, of Abbeville, for respondent.

HYDRICK, J. In April, 1914, defendant gave a musical entertainment in its new auditorium to which the public was invited on payment of an admission fee of 50 cents each. While the entertainment was in progress, the balcony fell on plaintiff's intestate, and he sustained injuries from which he subsequently died.

Plaintiff alleged and introduced evidence tending to prove that the balcony fell because of negligence in its construction. Defendant denied negligence, but claimed exemption from liability, notwithstanding negligence should be proved, on the ground that it is a public charity; and, on that ground, a nonsuit was ordered.

Defendant offered no evidence to prove its relation to the public, but relied upon certain stautes relative to its incorporation and association with the Associate Reformed Presbyterian Synod to show that it is a public charity. Careful consideration of these statutes shows that, while they warrant an inference that defendant is a public charity, they do not prove that fact beyond dispute, for they are not inconsistent with the view that defendant is a private corporation conducted for gain. Defendant's attorneys practically concede that the acts incorporating defendant and those amending and extending its charter fail to show conclusively that it is a public charity, and they seek to supply the deficiency of proof by reference to the act which incorporates "the Board of Trustees of the Associate Reformed Presbyterian Synod, " which declares the synod to be "a religious association engaged in the propagation of the gospel"; and, coupling this statutory declaration of the character of the synod as a public charity, with the authority vested in the synod by the act amending defendant's char-

[88 S.E. 650]

ter, which puts the college under the jurisdiction of the synod and authorizes the synod to elect its trustees, the court is asked to infer that defendant is of the same character as the synod. That may be so, but it is not the only inference of which the facts are susceptible. The synod may be invested with like authority over a private enterprise conducted for gain, on account of the benefit which would probably and naturally inure to such an institution by reason of its association with a great religious organization.

A nonsuit may be granted when plaintiff's evidence establishes a defense to the action; but, in that case, the evidence in support of the defense must be open to no other reasonable inference than the truth of the essential elements of fact constituting the defense.

It cannot be said that the objection is purely technical, because, the plaintiff having made out a prima facie case, the defendant's immunity rests upon proof of facts sufficient to bring it within the exception to the rule. For these reasons the nonsuit must be set aside, and the case remanded for a new trial, if plaintiff be advised that...