#### JAMES E. BROCK v. METROPOLITAN LIFE INSURANCE COMPANY.

(Filed 4 October, 1911.)

1. Insurance, Life — Application—Misrepresentations—Proof of Loss —Statements—Prima Facie Case — Evidence—Questions for Jury.

A statement made in a proof of loss after the death of the insured by her father and next of kin, beneficiary under the policy sued on, that the insured had had pneumonia prior to her application for the policy, and in contradiction of her representation in her application that previously thereto she had not had it, is primia facie evidence only of the falsity of her representations, leaving it for the plaintiff to satisfy the jury, upon all the evidence, that she did not have it prior to her application.

2. Same — Mistake—Weight of Evidence.

When the proof of loss contains a statement that would invalidate the policy of life insurance sued on, if true, that the insured had had pneumonia prior to the time of her application, contrary to her representations therein made, the statement made in the proof of loss affects only the weight of the evidence for the jury to consider, when there is also evidence that the statement was made under a mistake.

3. Same.

The insured, in her application for life insurance, represented that she had not previously had pneumonia. After her decease, the beneficiary, in his proof of loss, made a statement that she had had pneumonia previous to her application: Held,, evidence sufficient to go to the jury in rebuttal of the prima facie case made out for the defendant in the plaintiff’s suit upon the policy, that plaintiff was mistaken and was speaking from hearsay and not from his personal knowledge, and that the insured had not had pneumonia, as stated in her application.

4. Evidence — Prima Facie Case — Weight of Evidence — Questions for Jury.

The party against whom a prima facie case is raised by the law is not bound to overcome it by the greater weight of the evidence, but may combat it before the jury, when there is conflicting evidence, as being insufficient evidence of the ultimate fact under the circumstances of the case.

*1135. insurance, Life — Misrepresentations—Disease—Witnesses, Non-expert — Harmless Error.

The defense in an action to recover upon a life insurance policy being tbe misrepresentation of the insured that she had not had pneumonia previous to her application for. the policy, exceptions to testimony of nonexpert witnesses that they did not know whether or not she had suffered from • this disease, upon the ground that only physicians could testify on the subject, will not be sustained, as their testimony would not tend to establish the fact either way. . ■ .

6. Insurance, Life — Misrepresentations — Medical Examiner — Evidence.

The defense to an action to recover upon a life insurance policy being that the insured had falsely’ represented in her application for the policy that she had never had pneumonia: Held, competent, as evidence, for the company’s medical examiner to testify that he recommended the risk upon his own examination and diagnosis of her physical condition, as tending to rebut the allegation that she titd had pneumonia, for the fact that he had thus passed her was some evidence that she had not . had the disease.

Appeal from Justice, J., at January Term, 1911, of LeNoib.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walicer.

D. L. Ward, Loftin & Dawson, and McLean, Varser &' McLean for plaintiff.

Aycoclc & Winston and George V. Gowper for defendant.

Walkek, J.

Tbis action was brought to recover tbe aggregate amount of two policies of insurance, one for $500 and tbe other for $154, which were issued, in July and September, 1908, by tbe defendant company on tbe life of Emma Davis, tbe daughter of tbe plaintiff. Tbe case was tried upon issues to which there was no exception and which, with tbe answers thereto, were as follows:

1. Did tbe insured, Emma Davis, represent in her application' for tbe policy for $500 that she bad never bad .pneumonia? Answer: Yes.

*1142. Had Emma Davis bad pneumonia prior to tbe filing of ber application for tbe policy for $500? Answer: No.

3. Did tbe insured, Emma Davis, represent in ber application for tbe policy for $500 tbat sbe bad never bad consumption ? Answer: Tes.

4. Had tbe insured, Emma Davis, prior to said application ever bad consumption? Answer: No.

5. Did tbe insured, Emma Davis, in ber application for tbe jtolicy for $500 represent tbat sbe bad not been under tbe care of any other physician within two years for any serious illness than Dr. Tull for chills, 19 May, 1908? Answer: Yes.

-'6. Was the insured under the care of any physician within two years for any serious illness other than Dr. Tull for chills, 19 May, 1908? Answer: No.

1. Did tbe insured in ber application for tbe policy for $154 represent tbat sbe bad not been attended by a physician for any serious disease or complaint? Answer: Yes.

8. Had tbe insured, Emma Davis, prior to said application, been attended by any physician for any serious disease or complaint? Answer: No.

9. What amount, if any, is plaintiff entitled to recover of defendant on said policies? Answer: $654, with interest from 9 June, 1909.

Judgment was given for tbe plaintiff, and defendant appealed.

It appears tbat in tbe application for tbe policy tbe insured represented and stated tbat sbe bad never bad pneumonia or consumption, nor bad sbe ever been treated by a physician for any serious illness. She was not able to pay tbe premium on tbe policy or even to take out tbe policy, and ber father did this- for ber, and after ber death, as ber next of kin and tbe beneficiary under tbe policy, be filed with tbe company a proof of loss, in which be stated tbat sbe bad an attack of pneumonia in February, 1906, prior to tbe date of ber application, of about three weeks duration, and bad chills and fevers occasionally all the time. There was evidence, we think, to show tbat this was a mistake, though it must be admitted tbat tbe 'state of tbe entire evidence was such as to justify tbe claim *115of the defendant’s counsel that it preponderated in his favor. But we are not permitted to interfere with verdicts, by determining with whom the mere weight of the evidence lies. If there is any testimony fit for the jury to consider upon the issue made by the pleadings, we must abide by the verdict and consider and decide only upon questions or inferences of law. The court charged the jury, substantially, with reference to the statement of the plaintiff in the proof of loss, or in what is called in the case his written claim for the insurance, that it was prima facie evidence of the fact that the deceased had pneumonia in 1906 and was otherwise ill, as stated, but that it devolved upon the plaintiff to satisfy them, upon all the evidence, that she did not have pneumonia prior to the date of her application. The defendant’s counsel, in their able and learned brief, state that “It was around this point that,the battle waged from the beginning to the end of the case.” They requested the court to charge that there was not sufficient evidence to rebut this prima facie case made by the statement of the plaintiff in the application. Assuming, for the sake of discussion, that the judge laid down a correct rule of law, as to the force and effect of plaintiff’s statement in the proof of loss, as to the 'deceased having had pneumonia — and we do not mean to question it in the least — we yet are of the opinion that there was evidence to rebut or overthrow the prima facie case thus raised. There was testimony, for example, which tended to show that the plaintiff was mistaken and was speaking from hearsay, and' not from his personal knowledge, when he made the statement, besides other competent and sufficient proof that the insured had not been a victim of pneumonia or consumption, or any other serious malady. The case, in this respect, was fairly submitted to the jury by Judge Justice, with his accustomed lucidity and accuracy in stating legal principles, as applied to the essential facts of a case; and, moreover, in this particular instance the charge of his Honor, if anything, placed the burden a shade too much upon the plaintiff, for where a prima facie ease is established by the proof of a single fact or a señes or concatenation of facts — a chain of evidence, as we call it— it is, at last, as we will see has been said by the Supreme Court *116of tbe United States, only proof, though it may be strong, of the ultimate fact or facts to be shown as necessary to the party’s recovery or success. It is not conclusive, but must be submitted to the jury, either by itself or along with the other evidence, for them to find the ultimate, final, and constituent facts which, in law, are the true basis of recovery, whether by plaintiff or defendant. In other words, and to make this doctrine clearer, if possible, the prima, facie case is only evidence, stronger, to be sme, than ordinary proof, and the party against whom it is raised by the law is not bound to overthrow it and prove the contrary by the greater weight of evidence, but if he fails to introduce proof to overcome it, he merely takes the chance of an adverse verdict, and this is practically the full force and effect given by the law to this prima facie case. He is entitled to go to the jury upon it and to combat it, as being insufficient proof of the ultimate fact under the circumstances of the case, but he takes the risk in so doing, instead of introducing evidence. We believe this is thoroughly in accord with our authorities.

In Shepard v. Telegraph Co., 143 N. C., 244, the present Chief Justice, citing Board of Education v. Makeley, 139 N. C., 35, and adopting as a correct statement of the law what is quoted in that case from 1 Elliott on Evidence, sec. 139 (not only a standard work, but one of the best we have on the law of evidence), said: “The burden of the issue, that is, the burden of proof, in the sense of ultimately proving or establishing the issue or ease of the party upon whom such burden rests, as distinguished from the burden or duty of going forward and producing evidence, never shifts; but the burden or duty of proceeding or going forward often does shift from one party to the other, and sometimes back again. Thus, when the actor has gone forward and made a prima facie case, the other party is compelled in turn to go forward or lose his case, and in this sense the burden shifts to him. So the burden of going forward may, as to some particular matter, shift again to .the first party in response to the call of a prima facie case or presumption in favor of the second party. But the party who has not the burden of the issue is not bound to disprove the actor’s *117ease by a preponderance of tbe evidence, for tbe actor must fail if, upon tbe whole evidence, be does not bave a preponderance, no matter whether it is because tbe weight of evidence is with tbe other party or because tbe scales are equally balanced.” Tbe Chief Justice, in-commenting- upon this rule, stated tbe law of this State thus: “Tbe bur-den of tbe issue as to negligence was upon tbe plaintiff. If no evidence bad been offered in rebuttal, tbe court might bave told tbe jury that if they believed tbe evidence, to answer that issue ‘Yes.’ But when evidence was offered in rebuttal, it was not incumbent upon tbe defendant to prove it by a preponderance of testimony, but upon all tbe testimony it.was tbe duty of tbe plaintiff to satisfy tbe jury by a preponderance of tbe evidence that tbe defendant was guilty of negligence.” This agrees with what was said in Womble v. Grocery Co., 135 N. C., 474, and Stewart v. Carpet Co., 138 N. C., 66, and Winslow v. Hardwood Co., 147 N. C., 277, except in this, that tbe jury must be satisfied upon tbe prima, facie case of tbe right to a verdict.

So in this ease tbe judge might well bave submitted tbe prima facie ease alone to tbe jury, if there bad been no other evidence for their consideration; and still be should bave charged them that it is not conclusive, but they must say whether it is really according to tbe truth of tbe matter, or, to adopt tbe idea as expressed by tbe Supreme Court of tbe United States, a prima facie case is, at tbe most, merely sufficient proof to establish tbe fact, and if not rebutted it remains sufficient, but is not conclusive. In tbe recent case of Bailey v. State of Alabama, 219 U. S., 219, tbe Court says: "Prima facie evidence is sufficient evidence to outweigh tbe presumption of innocence and, if not met by opposing’ evidence, to support a verdict of guilty. ‘It is such as, in judgment of law, is sufficient to establish tbe fact; and, if not rebutted, remains sufficient for tbe purpose.’ ” But tbe Court also held that prima fade evidence is at last only some evidence of tbe main facts, sufficient, it is true,- to support a verdict, but not absolutely controlling upon tbe jury, who may convict or not upon it, as they may see fit, or who, in a civil case, may find a verdict in accordance with it, or, by disregarding it, as being insufficient *118to convince them, may return -tie opposite verdict. And so in Bailey v. State, 161 Ala., at p. 78 (same case), tbe Court says: “It must be borne in mind tbat tbe rule of evidence fixed by tbe statute does not make it tbe duty of tbe jury to convict on tbe evidence referred to in tbe enactment, if unre-butted, wbetber satisfied thereby of tbe guilt of tbe accused beyond a reasonable doubt or not. On tbe contrary, with sucb evidence before them, tbe. jury are still left free to find tbe accused guilty or not guilty, according as tbey may be satisfied of bis guilt or not, by tbe whole evidence.”

It was objected and argued by defendant’s counsel tbat tbe court bad permitted nonexpert witnesses for tbe plaintiff to 'testify tbat tbe deceased bad never bad pneumonia, but we do not think their negative testimony can bear this construction. Tbey merely said, as we understand them, tbat tbey did not know wbetber or not she bad suffered from this disease. Tbey did not profess to say, or to give a medical opinion, upon facts known to them or otherwise, as to wbetber she bad pneumonia. A fair interpretation of what tbey said would lead us to tbe inference tbat tbey simply bad not beard of any sucb thing.

Tbe testimony of Dr. Pollock, tbe medical examiner of tbe company, tbat be recommended tbe risk, not upon* her statement tbat she bad never bad pneumonia or consumption, but upon bis own examination and diagnosis of her physical condition, was clearly competent. Of course, as contended by defendant’s counsel, tbe question was not wbetber tbe medical examiner was influenced in giving bis certificate of her physical soundness by any statement she bad made, but rather wbetber tbe defendant was induced thereby to issue tbe policy or to enter into tbe contract of insurance with her, and bis testimony was competent and relevant, in this view, to rebut the allegation tbat she bad ever actually been afflicted with tbe diseases mentioned, for lie stated, also, tbat she had not been so affected, and tbe very fact tbat be examined and “passed her,” in view of tbe questions asked in tbe application, was some evidence, under all tbe circumstances of this case, tbat she bad never suffered from pneumonia or consumption or any other serious disease. Ve have found no error in tbe trial.

No error.