STARKEY PAINT COMPANY, INC.
v.
SPRINGFIELD LIFE INSURANCE COMPANY, INC.
No. 7414SC901.
Court of Appeals of North Carolina.
February 5, 1975.*499 Norman E. Williams, Richard M. Hutson, II, and R. Hayes Hofler, III, Durham, for plaintiff-appellant.
Bryant, Lipton, Bryant & Battle, P. A. by James B. Maxwell and Lee A. Patterson, II, Durham, for defendant-appellee.
ARNOLD, Judge.
Plaintiff's first assignment of error is directed to the following instruction given by the trial court:
"Now, members of the jury, I want to instruct you that in a suit to recover upon a policy of life insurance where the Insurance Company contends upon the grounds that the insured's death was caused by suicide, the burden of proof is upon once the defendant has presented its evidence relating to the defense of suicide, then the burden of proof is upon the plaintiff to show by the greater weight of the evidence that the death of the insured *500 was caused by external violence or accidental means within the terms and provisions of the policy. You are instructed that the burden of proof which rests upon the plaintiff to show that the death of the insured was caused by external violent and accidental means, and that the defendant is liable under the terms of the policy is aided by the presumption that the death of the insured was not due to suicide."
Plaintiff contends that this instruction constitutes prejudicial error. We agree.
In an action to recover on a life insurance policy of general coverage, plaintiff makes out a prima facie case by showing execution and delivery of the policy, payment of premiums, and death of the insured. Terrell v. Insurance Co., 269 N.C. 259, 152 S.E.2d 196 (1967); Thaxton v. Insurance Co., 143 N.C. 34, 55 S.E. 419 (1906); 4 Strong N.C. Index 2d, Insurance, § 37, pp. 507-08. In the case at bar, these facts were stipulated by the parties. The only issue to be tried was whether the insured intentionally committed suicide. The burden of proving suicide as an affirmative defense rested with defendant throughout trial. Hedgecock v. Insurance Co., 212 N.C. 638, 194 S.E. 86 (1937); Baker v. Insurance Co., 168 N.C. 87, 83 S.E. 16 (1914). See also 2 Stansbury, N.C. Evidence (Brandis rev.), § 205.
In the above-quoted portion the trial court apparently attempted to integrate into the charge a burden of proof which obtains only in actions on policies insuring against accidental death. See Warren v. Insurance Co., 215 N.C. 402, 2 S.E.2d 17 (1939); 2 Stansbury, supra, § 224. Since plaintiff here sued on an ordinary life insurance policy, the charge was erroneous. Misplacing the burden of proof, it was also prejudicial. Wiles v. Mullinax, 275 N.C. 473, 168 S.E.2d 366 (1969); Williams v. Insurance Co., 212 N.C. 516, 193 S.E. 728 (1937); 7 Strong N.C. Index 2d, Trial, § 35, pp. 338-39.
Defendant calls to our attention the numerous instances in the charge where the trial court correctly instructed on burden of proof. Nevertheless, it is well settled that erroneous instructions on burden of proof are not cured by contextual construction. 7 Strong, supra, at 339. Quoting State v. Overcash, 226 N.C. 632, 39 S.E.2d 810 (1946), our North Carolina Supreme Court has said:
"'When there are conflicting instructions to the jury upon a material point, the one correct and the other incorrect, a new trial must be granted. We may not assume that the jurors possessed such discriminating knowledge of the law as would enable them to disregard the erroneous and to accept the correct statement of the law as their guide. We must assume instead that the jury in coming to a verdict, was influenced by that part of the charge that was incorrect.'"
Barber v. Heeden, 265 N.C. 682, 686, 144 S.E.2d 886, 889 (1965). In the instant case, we cannot say that the charge as a whole did not confuse the jury to the prejudice of the plaintiff.
We now turn to plaintiff's remaining assignments of error, all of which concern evidentiary questions. The first involves the testimony of Sheriff Earl Rhew that, after he saw decedent's body lying on the bed, he said, "Damn, Lynch, he has committed suicide." Such testimony constitutes an expression of the very fact in issue and invades the province of the jury. See Wood v. Insurance Co., 243 N.C. 158, 90 S.E.2d 310 (1955). Its admission, over plaintiff's objection, was error.
Plaintiff contends that the trial court also should have excluded testimony of two psychiatrists concerning the number of suicides in North Carolina in 1970, the number accomplished by gunshot wounds, and different rates among population groups. While such statistics may be relevant to an understanding of suicide generally, their tendency to prove suicide in a *501 particular case is nonexistent. It follows that this evidence was not competent and should have been excluded. See generally 3 Strong N.C. Index 2d, Evidence, § 15, pp. 619-20.
Plaintiff's next contention, that the trial court erred in refusing to allow decedent's personal physician to testify on cross-examination that he once told decedent's father that in his opinion decedent was not suicidal, is without merit. This was a prior statement offered for substantive purposes only and not to impeach the witness. It was proper to exclude it as hearsay. See McCormick's Handbook on the Law of Evidence, § 251 (2d ed. 1972).
Finally, plaintiff contends that it was error to allow Dr. John A. Gergin to express an opinion as to "whether the deceased was on [6 November 1971] a person who could or would be considered likely to commit suicide." The witness was qualified as an expert in psychiatry and responded to a properly-phrased hypothetical question. See 2 Stansbury, supra, §§ 133 and 137. We find no merit in plaintiff's contention.
For reasons stated earlier in this opinion, we hold that plaintiff is entitled to a new trial.
New trial.
VAUGHN and MARTIN, JJ., concur.