Williams v. Philadelphia Life Ins. Co.

• Decision Date: 24 November 1937
• Docket Number: 449.
• Citation: 193 S.E. 728,212 N.C. 516
• Parties: WILLIAMS v. PHILADELPHIA LIFE INS. CO.
• Court: North Carolina Supreme Court

193 S.E. 728

212 N.C. 516

WILLIAMS v. PHILADELPHIA LIFE INS. CO.

No. 449.

Supreme Court of North Carolina

November 24, 1937

Appeal from Superior Court, Wake County; Marshall T. Spears, Judge.

Action by Sadie Fannie Williams against the Philadelphia Life Insurance Company. Judgment for plaintiff, and defendant appeals.

New trial.

In beneficiary's action on life policy instruction that burden of proof was on insurer to satisfy jury that policy was not in full force and effect on date of insured's death was error.

Civil action to recover on policy of life insurance.

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

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

The case was submitted to the jury upon the following controverted issue: "3. Was the insurance policy sued upon in full force and effect on the date of the death of the insured, as alleged in the complaint?"

Upon this issue the court instructed the jury: "The burden of proof is upon the defendant in this issue to offer evidence to satisfy you by the greater weight thereof that this policy was not in full force and effect on that date. (Exception) * * * The burden is not upon the plaintiff in this case but upon the defendant. (Exception) * * * If the plaintiff has simply satisfied you without having any burden * * * it would be your duty to answer the issue, 'Yes."' Exception.

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

DuPree & Strickland, of Angier, for appellant.

Walter L. Spencer and D. Staton Inscoe, both of Raleigh, for appellee.

STACY Chief Justice.

Under the pleadings and the form of the issue submitted to the jury, the 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., 212 N.C. 377, 193 S.E. 273. The duty of meeting this prima facie case, in order to avoid hazarding an adverse verdict, was then cast upon the defendant. Lyons v Knights of Pythias, 172 N.C. 408, 90 S.E. 423; Harris v. National Council, 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 Cross, 126 N.C. 477, 36 S.E. 26. This, however, did not change the burden of proof, or the burden of the issue. Brock v. Ins. Co., 156 N.C. 112, 72 S.E. 213.

The burden of the issue does not shift, but the duty of going forward with evidence, to avoid the hazard or chance of an adverse verdict, may shift from side to side as the case progresses, according to the nature and strength of the proofs offered in support or denial of the 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. The burden of proof continues to rest upon the party who, either as plaintiff or defendant, affirmatively alleges facts necessary for him to prevail in the case. It is required of him who thus asserts such facts to establish them before he can become entitled to a verdict in his favor; and, as to these matters, he constantly has the burden of the issue, whatever may be the intervening effect of different kinds of evidence, or evidence possessing, under the law, varying degrees of probative force. Smith v. Hill, 232 Mass. 188, 122 N.E. 310, 2 A.L.R. 1667.

The defendant, of course, has the...