At thе trial of this cause tbe plaintiff offered tbe admissions contained in defendant’s answer and tbe policy of insurance and rеsted. 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 dаte 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 Septеmber, 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 tbе 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 bе found a pistol lying near the body and recognized it as one be bad loaned tbe deceased; that *640 thereupon be tоok the pistol, concealed it about bis person and carried it borne without saying anything to any of the others about having fоund 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 prоof 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 likewisе signed a certificate of death, which was filed with the State Registrar. In this certificate it was likewise stated that the cause оf 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 prоof of death, the burden of proof rested upon the defendant to establish its affirmative defense. That this was the only real mаtter at issue was recognized by the defendant. The record discloses that counsel for the defendant stated in open сourt 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 thе State Registrar, and the plaintiff was required to file a certificate as a part of the proof of death, but these stаtements 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 tаkes 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 dоes not bear out the suicide theory.” In filing proof of death under the terms of the policy in the manner required by the defendant thе plaintiff did not adopt or become bound by the statements of the coroner-physician.
Spruill v. Ins. Co.,
A judgment оf 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
*641
party baying tbe burden of proof upon evidence offered by bim.
Clark, C. J.,
in
Wharton v. Ins. Co.,
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.,
There is but one exception to this rule. Whеn 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 judgmеnt 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 whоm 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 dеfendant’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.