Weeks v. Charlotte Liberty Mutual Insurance, 264 N.C. 140

264 N.C. 140 | N.C. | 1965

Pee CuRiam.

The defendant assigns as error the court’s refusal (1) to admit the death certificate, and (2) to instruct the jury “that although the burden of proof was on the defendant as to the first issue, that if the jury believed the evidence it should answer the first issue, No."

G.S. 130-73 provides: “. . . (A)ny copy of a record of a birth or a death, with the certification of same, so signed or with the fascimile of the State Registrar affixed thereto shall be prima facie evidence in all courts and places of the facts therein stated.” Blalock v. Durham, 244 N.C. 208, 92 S.E. 2d 758.

Although the trial judge appears to have committed error in excluding the certificate, nevertheless, the error was harmless in this case for the reason that Dr. Hayes, the author of the certificate, was present in court and testified as a witness for the defendant. His testimony was in accordance with, and included all the statements made in the certificate. The plaintiff did not undertake to impeach any part of the testimony. The defendant had the benefit of all that was useful in the certificate.

The evidence in the case, since the burden was on the defendant, presented an issue of fact for the jury as to the state of the insured’s health at the time she signed the application for the policy, February 2, 1963, and at the time the policy was issued, March 18, 1963. The evidence was not such as to require or permit the court to answer the issue of fact in favor of the defendant as a matter of law. The court properly refused the instruction and left the issue to the jury.

No error.