Barnes v. Security Life & Trust Co.

50 S.E.2d 2, 229 N.C. 409, 1948 N.C. LEXIS 327

• Court: Supreme Court of North Carolina
• Decided: November 3, 1948
• Status: Published

Opinion

Baeniiill, J.

The plaintiff offered evidence sufficient to constitute a prima facie case for the jury. Thereupon the defendant offered evidence tending to show that the indebtedness against the policy equaled or exceeded the cash surrender value and that it had exercised the right to cancel the policy, vested in it by the terms of the loan agreement, and had so notified the insured. But these are matters in defense. As to them the burden of proof rests upon the defendant.

A judgment of nonsuit is never permissible in favor of the party having the burden of proof upon evidence offered by him. Hedgecock v. Insurance Co., 212 N. C. 638, 194 S. E. 86. “The burden of proof being on the defendant to prove its defense the court could not adjudge that an affirmative defense is proven, for that involves the credibility of the witnesses, which is a matter for the jury.” Wharton v. Ins. Co., 178 N. C. 135, 100 S. E. 266; Hedgecock v. Insurance Co., supra; MacClure v. Casualty Co., ante, p. 305.

It follows that the judgment of nonsuit must be held for error

Reversed.