#### SADIE FANNIE WILLIAMS v. PHILADELPHIA LIFE INSURANCE COMPANY.

(Filed 24 November, 1937.)

1. Insurance § 30c — Burden of proving that policy was in effect on date of insured’s death is on plaintiff beneficiary.

Where plaintiff beneficiary alleges that the policy was in full force and effect at the time of the death of insured, and insurer denies the allegation and alleges that the policy had lapsed for nonpayment of premiums, . the burden of proof upon the issue of whether the policy was in full force and effect at the date of the death of insured is on plaintiff, and while the burden of going forward with the evidence to avoid hazarding an adverse verdict may shift to insurer upon the establishment of a *prima facie*case by plaintiff, an instruction placing the burden of proof on insurer upon the issue is error entitling insurer to a new trial.

2. Evidence § 6 — Distinction between burden of proof and burden of going forward with the evidence.

While the burden of going forward with the evidence to avoid the hazard of an adverse verdict may shift from side to side, according to the nature and strength of the proofs offered in support or denial of the main fact in issue, the burden of proof on the issue rests constantly throughout the trial upon the party, plaintiff or defendant, who asserts and must establish the affirmative thereof in order to prevail.

3. Evidence § 8 — Burden of proving affirmative defenses is on defendant.

The defendant has the burden of establishing all affirmative defenses, and what are affirmative defenses may be determined from the pleadings in most cases, and in others by presumptions arising from the evidence adduced on the hearing or from admissions made during the trial.

4. Appeal and Error § 39g—

The burden of proof is a substantial right, and an erroneous placing of the burden is reversible error.

Appeal by defendant from *Spears, J.,*at second March Term, 1937, of Wake.

Civil action to recover on policy of life insurance.

On 26 October, 1921, the defendant issued and delivered to William E. Williams a policy of life insurance in tbe principal sum of $1,000, payable to plaintiff as beneficiary at death of insured, which occurred 28 July, 1935.

Plaintiff alleges that the policy was in full force and effect at the deáth of insured. This is denied by the defendant, it being alleged that the policy had lapsed for nonpayment of premiums on 26 October, 1931.

The case was submitted to the jury upon the following controverted issue:

*517“3. Was tbe insurance policy sued upon in full force and effect on tbe date of tbe death of tbe insured, as alleged in tbe complaint ?”

Upon tbis issue tbe court instructed tbe jury: “Tbe burden of proof is upon tbe defendant in tbis issue to offer evidence to satisfy you by tbe greater weight thereof that tbis policy was not in full force and effect on that date. (Exception.) . . . Tbe burden is not upon tbe plain-

tiff in tbis case but upon tbe defendant. (Exception.) ... If tbe plaintiff has simply satisfied you without having any burden . . .

it would be your' duty to answer tbe issue ‘Yes.’ ” Exception.

Tbe jury answered tbe issue in tbe affirmative, and from judgment on tbe verdict defendant appeals, assigning errors.

*Walter L. Spencer and D. Staton Inscoe for plaintiff, appellee.*

*Dupree & Strickland for defendant, appellant.*

Stacy, C. J.

Under tbe pleadings and tbe form of tbe issue submitted to tbe jury, tbe burden of proof was on the plaintiff to make out her case. It is conceded that a *prima facie*right of recovery was established by her evidence. *Williamson v. Ins. Co., ante,*377. Tbe duty of meeting tbis *prima facie*case, in order to avoid hazarding an adverse verdict, was then cast upon tbe defendant. *Lyons v. Knights of Pythias,*172 N. C., 408, 90 S. E., 423; *Harris v. Junior Order,*168 N. C., 357, 84 S. E., 405; *Wilkie v. National Council,*147 N. C., 637, 61 S. E., 580; *Doggett v. Golden Gross,*126 N. C., 477, 36 S. E., 26. Tbis, however, did not change tbe burden of proof or tbe burden of tbe issue. *Brock v. Ins. Co.,*156 N. C., 112, 72 S. E., 213.

Tbe burden of tbe issue does not shift, but tbe duty of going forward with evidence, to avoid tbe hazard or chance of an adverse verdict, may shift from side to side as tbe case progresses, according to tbe nature and strength of tbe proofs offered in support or denial of tbe main fact in issue. *White v. Hines,*182 N. C., 275, 109 S. E., 31; *Winslow v. Hardwood Co.,*147 N. C., 275, 60 S. E., 1130. Tbe burden of proof continues to rest upon tbe party who, either as plaintiff or defendant, affirmatively alleges facts necessary for him to prevail in tbe case. It is required of him who thus asserts such facts to establish them before he can become entitled to a verdict in bis favor; and, as to these matters, be constantly has tbe burden of tbe issue, whatever may be tbe intervening effect of different kinds of evidence, or evidence possessing, under tbe law, varying degrees of probative force. *Smith v. Hill,*232 Mass., 188.

Tbe defendant, of course, has tbe burden of establishing all affirmative defenses, whether they relate to tbe whole case or only to certain issues in tbe case. As to such defenses, he is tbe actor and has tbe *518laboring oar. *Austin v. R. R.,*187 N. C., *7,*121 S. E., 1; *Shepard v. Tel. Co.,*143 N. C., 244, 55 S. E., 704.

Wbat is and what is not an affirmative defense is not always easy to *determine.*Sometimes it is to *be*determined by the pleadings and at others by presumptions arising from the evidence adduced on the hearing or from admissions made during the trial. *Spilene v. Mfg. Co.,*79 N. H., 326. Here the defendant relies upon a defense, affirmative in form perhaps, but which in reality merely traverses the allegations of the complaint.

It is true that in some of the cases expressions are to be found which may seem to justify the court’s charge to the jury, unless confined to the particular fact situations there presented, but “the duty of the defendant to go forward with his proof” is not to be confused with the burden of proof or the burden of the issue. *Page v. Mfg. Co.,*180 N. C., 330, 104 S. E., 667.

The distinction between the burden of proof and the duty of going forward with evidence was investigated in the case of *Speas v. Bank,*188 N. C., 524, 125 S. E., 398. Much that was there said would seem to be applicable here.

The rule as to the burden of proof constitutes a substantial right, for upon it many cases are made to turn, and its erroneous placing is reversible error. *DeHart v. Jenkins,*211 N. C., 314, 190 S. E., 218; *Boone v. Collins,*202 N. C., 12, 161 S. E., 543; *Hosiery Co. v. Express Co.,*184 N. C., 478, 114 S. E., 823.

For the error, as indicated, a new trial must be awarded.

New trial.