Nolf v. Patton

The 'opinion of the Court was delivered by Mr. ChiefJustice; Gary. The following statement of the facts appear 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 ‘D’ on the back in which was located the *328 kitchen with a piazza on the ‘R.’ 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, the husband, was found in the door leading from the said bedroom into the dining room. “That the said George Ralph Nolf left a personal estate consisting of $3,440.80 life insurance policy, $851.97 in a bank at Marion, and an automobile which since his death sold for $760, aggregating the sum of $7,080.73. That A. R. Rowman and John Nolf were duly appointed administrators upon the estates of George Nolf and his wife, Getty Patton Nolf. The complaint alleged the plaintiffs to be the heirs and distributees ■ at law of the said George Ralph Nolf, ánd that his wife and baby predeceased him. The defendants’ answer denies the allegations of the complaint and demands strict proof- thereof, further alleging that the wife of the said George Ralph Nolf survived him and the said baby. “At the close of plaintiffs’ testimony the defendants moved for a nonsuit, which motion was refused. The ■defendants put up their evidence, and at the close of all the evidence, the defendants moved for a direction of a verdict on the same grounds as made in the motion for a nonsuit, which motion was refused. The plaintiffs then moved the Court for a direction of a verdict upon the grounds as stated in the record, which was refused, the case was submitted to the jury, and the jury found for the'defendants, and the plaintiffs now. ask that judgment be reversed upon exceptions herein set out. That at the commencement of the cause, and before any evidence was adduced, it was agreed *329 that the equitable distribution of the assets be left to future administration according to law, and the only question to be decided by the jury was that of title to the property, including the question of survivorship.” 1, 2 The first question that will be considered is whether there was error on the part of his Honor, the presiding Judge, in ruling that the burden rested upon the plaintiffs to prove that George Ralph Nolf survived his wife. The complaint so alleges, and the general rule is that it is incumbent upon the plaintiff to sustain the allegations of his complaint. There is nothing in the case of Pell v. Ball, Cheves Eq. 99, upon which the appellants rely, inconsistent with that principle. The next question to be determined is whether the verdict of the jury was a reasonable inference from the testimony. It was admitted that C. T. Newton, a witness for the plaintiffs, if present, would swear as follows: “That upon arriving at the scene deponent found that the house was on fire, and that the said fire had started in the kitchen, and when deponent reached the premises.the kitchen was so far consumed by the fire that it was impossible for any one to enter said kitchen, and that said fire at this time was spreading into the main body of the house, which wras burning very rapidly; that deponent found Mr. Ralph Nolf lying in the door of the bedroom- leading into the dining room, and that he was burned beyond recognition; that deponent also found Mrs. Nolf with her baby in her arms in the kitchen near the cooking stove, and that she and said baby were likewise burned beyond recognition.” C. M. Pantall, another witness for plaintiffs, thus testified: “After the house hád burned down Mr. Nolf was found tying just outside of the bedroom door which leads into the dining room. We found Mrs. Nolf and the baby in the kitchen. The wife and baby were tying on their faces; the *330 baby was in its mother’s arms. When I reached the fire it had about practically half burned the kitchen; it had made a big headway. When I first went in the front door there was a pillow laying in the middle of the front, room and it was on fire, and I threw it out. The whole thing was a mystery. I cannot account for the pillow being on fire; there were no sparks flying at that time and none of the ceiling was falling in at that time. The house was so full of smoke I could not hardly stay in there. I had to get out as quick as I could or I would have suffocated. “The Court: In what direction was the wind blowing; was it blowing from the kitchen to the body of the house, or how was it blowing? A. Yes, sir; it was blowing right over the body of the house.” IT. P. Anderson, another witness for plaintiffs, testified: “The fire burned from the kitchen into the main part of the house. It burned from the kitchen to' the dining room and then to the two main rooms. It burned pretty fast. Mr. Nolf was right in the dining room door and his head was facing towards his bedroom. The house had sills. The sills were not consumed in the fire, but were charred. Mr. Ralph’s body was close to the sill leading to his bedroom where his body was found. I saw blood and brains there on the edge of the sill.” Dr. J. G. Wooley, witness for the defendants, testified: , “On examination of the bodies I could not find anything except on the head of the father. “The Court: He was not burned otherwise, doctor ? Witness (continuing) : Oh, yes; I could not find any evidence of injury or contusion, though, or anything like that, except the skull of the father was practically burned off of the portion of the head, but on the right back portion of the head, just about here (indicating), there was an indentation of about an inch.thick, I would say. It was about an inch deep to the best of my judgment. It was a burned *331 hole, with a portion of his skull pushed into the burned substance of the brain. That hole was about an inch in diameter, and had the appearance of having been made by some blunt instrument, similar to the head of a hatchet or hammer, I would say. Q. State whether or not that place in the skull that you saw could have been made by something falling on Mr. Nolf’s head? A. From the position of his body it could not have happened that way. He was lying on his back and that fracture was in the back of the head here (indicating). Q. Is there any other reason why a scantling of that kind of falling timber did not make it? A. If it had been made after the skull was burned off, you would have had a different appearance of the skull. When the skull was burned it left the membrane pretty well intact, and if a piece of timber had fallen on him, it would not have made a round depression, but it would have torn it out in some way or other, and it would not have been smooth and round as it was. It had a smooth and round appearance. Q. Could a piece of wood have made such a depression as you found on his head? A. No, sir; not after his death. Q. State whether or not from your examination that was made before he was burned? A. Yes, sir. That is my impression of it; it was made before he was burned. That is my opinion.” Mrs. Myrtle Lowman, a witness for the defendants, testified : “My sister had some nice silverware, cream and sugar dishes, knives and forks, and all kinds of nice silverware; they were never able after the fire to find any of that silverware. They found some knives, but they were not the silver knives. Sometimes Mr. and Mrs. Nolf and the baby occitpied the same room and sometimes they slept in different rooms. When he worked hard she would take the baby off in another room so that he could get his rest, and they would sometimes occupy separate rooms and beds. In the *332 winter time they were more apt to sleep together than in the summer time.” 3 The foregoing testimony shows that it was not necessary to resort to conjecture, which is an unsatisfactory manner of determining such issues (Pell v. Ball, Cheves Eq. 99) ; but, on the contrary, shows that the verdict of the jury was sustained by the testimony. 4 We have not considered those exceptions that violate Rule 5, sec. 6, of the Supreme Court (90 S. E. 7), which provides that “Each exception must contain within itself a complete assignment of error, and a mere reference therein to any other exception then or previously taken, or request to charge,” will not be considéred. The exceptions which we have not discussed fail to>assign any error prejudicial to the rights of the appellants. Affirmed.