#### MRS. M. N. HEDGECOCK v. JEFFERSON STANDARD LIFE INSURANCE COMPANY.

(Filed 15 December, 1937.)

1. Insurance § 37—

Where the beneficiary of a life policy introduces in evidence the policy and the admissions in insurer’s answer that it issued the policy, that insured was dead, and that plaintiff beneficiary had filed proper proof of death, plaintiff establishes a *prima facie*case.

2. Insurance § 37 — Statements contained in certificates executed by parties other than plaintiff are not binding on plaintiff.

Where the certificate of the coroner-physician, filed by the beneficiary as ■ part of the proof of death, states that insured committed suicide, which statement is denied by the beneficiary in her attached letter, the beneficiary is not bound by the statement in the certificate not executed by her, and such statement does not constitute evidence offered by her in support of the affirmative defense of suicide set up by insurer in the beneficiary’s action on the policy.

3. Trial § 22c—

Where plaintiff makes out a *prima facie*case, a nonsuit may not be granted upon defendant’s evidence in support of an affirmative defense, a nonsuit upon an affirmative defense being permissible only if plaintiff’s own evidence establishes such defense as a matter of law.

4. Insurance § 37 — Insurer is not entitled to nonsuit upon affirmative defense unless plaintiff beneficiary’s own evidence establishes it.

Where plaintiff beneficiary makes out a *prima facie*case, and defendant insurer sets up the affirmative defense that insured committed suicide, and that therefore no recovery could be had under the relative provision of the policy, and insurer introduces evidence in support of its defense, but *639no evidence in regard thereto is introduced by plaintiff, it is error for the court to grant insurer’s motion to nonsuit, since a motion to nonsuit may not be allowed in favor of a party upon whom rests the burden of proof.

Appeal by plaintiff from *Harding, J.,*at August Term, 1937, of Guilfoed. New trial.

This is an action instituted by tbe plaintiff against tbe defendant to recover $2,000, tbe face amount of a policy of insurance issued by tbe defendant 15 May, 1934, on tbe life of Marshall Nicbolis Hedgeeoek. Tbe plaintiff was named beneficiary in tbe policy. Tbe insured died 29 September, 1934, from tbe effects of a bullet wound in tbe bead.

Tbe defendant admitted tbe issuance of tbe policy, tbe death of tbe insured, tbe proper filing of proof of death by tbe beneficiary, set up tbe affirmative defense that tbe insured came to bis death from a self-inflicted wound and denied liability by reason thereof. At tbe conclusion of all tbe evidence defendant’s motion to dismiss as of nonsuit was allowed and judgment was entered accordingly. Plaintiff excepted and appealed.

*Frazier & Frazier for plaintiff, appellant.*

*Smith, Wharton & Hudgins for defendant, appellee.*

BaeNHIll, J.

At the trial of this cause tbe plaintiff offered tbe admissions contained in defendant’s answer and tbe policy of insurance and rested. This made out a *prima facie*case for tbe plaintiff.

Tbe defendant then proceeded to offer evidence tending to sustain its affirmative defense under tbe terms of tbe policy, which provides: “In ease of self-destruction committed, whether sane or insane, within two full years from tbe date hereof, tbe extent of recovery hereunder shall be tbe premiums paid.”

Tbe defendant’s evidence tended to show that tbe insured was a car foreman employed by tbe Southern Eailway Company; that be was found dead about 7:15 a. m., 29 September, 1934, in a small office used by him on the Pomona yards of tbe Southern Eailway in tbe city of Greensboro; that there was a bullet wound in tbe right side of tbe bead with tbe point of exit on the left side; that tbe office was closed; that there was blood on tbe desk and papers at which tbe deceased bad apparently been sitting; that there was a note found on tbe desk, in tbe bandwriting of tbe deceased, tbe wording of which indicated a suicidal intent. Those who found tbe body, other than one Dempsey, and tbe officers who later went to tbe scene of tbe death found no pistol or other weapon; tbe witness Dempsey testified that be found a pistol lying near the body and recognized it as one be bad loaned tbe deceased; that *640thereupon be took the pistol, concealed it about bis person and carried it borne without saying anything to any of the others about having found it. When asked about the pistol he first denied that he loaned the deceased a weapon, but testified that he did in fact lend him a pistol and that the one he found was his. He further testified that he loaned the deceased a Smith & Wesson, whereas the one offered in evidence was a Colt.

As a part of the proof of death the plaintiff filed her .certificate, in which it was stated that the cause of death was a bullet wound in the head. She also filed a physician’s certificate signed by W. W. Harvey, M.D., in which it was stated that the cause of death was suicide. Dr. Harvey likewise signed a certificate of death, which was filed with the State Registrar. In this certificate it was likewise stated that the cause of death was suicide and that the deceased shot himself through the head with a pistol. These certificates were offered in evidence by the defendant.

The defendant having admitted the issuance of the policy, the death of the insured and due proof of death, the burden of proof rested upon the defendant to establish its affirmative defense. That this was the only real matter at issue was recognized by the defendant. The record discloses that counsel for the defendant stated in open court that -the sole issue in the case is whether he did or did not commit suicide.

The statements contained in the certificates executed by parties other than the plaintiff are not binding upon her. The physician was required to file a certificate with the State Registrar, and the plaintiff was required to file a certificate as a part of the proof of death, but these statements are not conclusive as to her cause of action. When the proof of death and certificates were filed with the defendant they were accompanied by, or attached to, a letter in which it is stated: “The beneficiary takes issue with the verdict of the coroner’s jury. There was little or no evidence submitted to such jury, and such evidence as was submitted does not bear out the suicide theory.” In filing proof of death under the terms of the policy in the manner required by the defendant the plaintiff did not adopt or become bound by the statements of the coroner-physician. *Spruill v. Ins. Co.,*120 N. C., 141, is not in point. In that case the beneficiary filed a proof of loss, in which she stated that the deceased died by his own hand. At the trial this statement on her part was not contradicted. Even so, in that case there was a directed verdict against the plaintiff and not a judgment of nonsuit.

A judgment of nonsuit is permissible against one upon whom the *onus*of proof rests when there is no evidence or a mere scintilla of evidence, but a judgment of nonsuit is never permissible in favor of the *641party baying tbe burden of proof upon evidence offered by bim. *Clark, C. J.,*in *Wharton v. Ins. Co.,*178 N. C., 135, citing *Spruill v. Ins. Co.,*120 N. C., 141, says: “Tbe burden of proof being on tbe defendant to prove its defense tbe court could not adjudge tbat an affirmative defense is proven, for tbat involves tbe credibility of tbe witnesses, wbicb is a matter for tbe jury.”

Where an insurance company interposes tbe defense of suicide by tbe insured to avoid recovery by tbe plaintiff in bis action on a life insurance policy tbe burden of proof is on tbe defendant to sbow by tbe greater weight of tbe evidence tbe fact of suicide, and a nonsuit upon tbe evidence will not be allowed. Tbe weight of tbe evidence must be with tbe party who has tbe burden of proof, or else be cannot succeed, and tbe jury is tbe sole judge of tbe weight and credibility of tbe testimony. *Baker v. Ins. Co.,*168 N. C., 87; *Thaxton v. Ins. Co.,*143 N. C., 34; *Chaffin v. Mfg. Co.,*135 N. C., 95; *Parker v. Ins. Co.,*188 N. C., 405.

There is but one exception to this rule. When tbe plaintiff offers evidence sufficient to constitute a *prima facie*case in an action in wbicb tbe defendant has set up an affirmative defense, and tbe evidence of tbe plaintiff establishes the truth of tbe affirmative defense as a matter of law, a judgment of nonsuit may be entered. This more frequently occurs in actions in wbicb tbe defendant pleads contributory negligence. But when tbe evidence is conflicting, or when tbe only evidence offered on tbe affirmative defense is tbat of tbe party upon whom tbe *onus*of proof rests, tbe cause must be submitted to tbe jury. In such instances a judgment of nonsuit may not be substituted for a directed verdict.

Tbe plaintiff herein offered no testimony tending to show tbat tbe deceased came to bis death from a self-inflicted wound. All of tbe evidence tending to support tbe defendant’s allegations of affirmative defense was offered by tbe defendant.

The defendant’s cause rests largely upon tbe evidence of tbe witness Dempsey, whose statements were conflicting. The plaintiff has tbe right to have this testimony submitted to a jury to determine tbe weight and credibility of tbe evidence. Tbe court below in effect found tbat tbe affirmative defense bad been established by tbe testimony. This finding rests exclusively with tbe jury.

Tbe cause is remanded to the end tbat there may be a

New trial.