dissenting. The crux of this appeal concerns two related issues of Ohio law. First, the effect of the legal presumption against suicide. Second, upon which party is the burden of persuasion cast relative to a suicide exception contained in a life insurance policy.
The widely recognized presumption against suicide is stated in Shepherd v. Midland Mut. Life Ins. Co. (1949), 152 Ohio St. 6, 15 [39 O.O. 352], as follows: “* * * [W]here it is shown that death resulted from bodily • injury caused by violent and external means without a showing as to how the injury was in fact sustained, there is a presumption that death did not result from suicide, self-infliction of injury, criminal assault of another, or voluntary employment of the means causing death.”
As the majority correctly recognizes, the nation’s courts have given effect to this presumption in differing ihanners.
One view operates procedurally and merely shifts the burden of production to the insurer to come forward with evidence of suicide. Carson v. Metropolitan Life Ins. Co. (1956), 165 Ohio St. 238 [59 O.O. 310]. As such, the ultimate burden of persuasion is cast on the plaintiff to prove accidental death by a preponderance of the evidence. Under this view, once rebutted, the presumption is extinguished and does not constitute evidence.
The better-reasoned approach, albeit not previously adopted by this *93court, provides that the legal presumption is a rule of law whereby the ultimate burden of persuasion of the nonexistence of the presumed fact is cast on the insurer (i.e., the insurer must demonstrate that the death resulted from suicide).
This view was recognized and applied in the case of Dick v. New York Life Ins. Co. (1959), 359 U.S. 437, which observed at 443 that “[p]roof of coverage and of death by gunshot wound shifts the burden to the insurer to establish that the death of the insured was due to his suicide. * * * [Citation omitted.] Under North Dakota law, this presumption does not disappear once the insurer presents any evidence of suicide. * * * Rather, the presumed fact (accidental death) continues and a plaintiff is entitled to affirmative instructions to the jury concerning its existence and weight.”
I find the view espoused by the United States Supreme Court in Dick, supra, to be preferable and would embrace that position as the law of Ohio.
Once a plaintiff establishes both the death of the insured and the existence of an insurance policy, the ultimate burden of persuasion is on the insurer to prove an affirmative defense by a preponderance of the evidence. Order of United Commercial Travelers v. Watkins (1931), 38 Ohio App. 420. This allows the fact finder to weigh the evidence to ascertain if the insurer has met the burden of rebutting the presumption by proving its affirmative defense. E.g., Gould v. Mutual Life Ins. Co. of N.Y. (1981), 95 Wash. 2d 722, 629 P. 2d 1331; Schelberger v. Eastern Sav. Bank (1983), 93 App. Div. 2d 188, 461 N.Y. Supp. 2d 785; Federated Guar. Life Ins. Co. v. Wilkins (Ala. 1983), 435 So. 2d 10, 13; Wirtanen v. Prudential Ins. Co. (1970), 27 Mich. App. 260, 183 N.W. 2d 456.
Today’s holding is also contrary to the “* * * general rule that, where there is general provision setting forth the obligation under a policy, and then a provision in the nature of an exception to such general provision, the plaintiff is not required to traverse such exception and prove the negative, but the duty is upon the defendant to plead such exception and prove facts necessary to bring the case within the exception. * * *” Watkins, supra, at 428-429.
This appeal does not solely concern the issue of presumptions. Rather, an essential question is the proper assignment of the burden of persuasion in suicide cases. The majority places this burden on the claimant whereas I deem it appropriate to assign the burden to the insurer. The insurer may meet its burden of production and thereby avoid a directed verdict. However, it is ill-advised to hold that the insurer is then entitled to judgment. The latter question concerns persuasion not production1 and is for *94determination by the trier of fact. Kennedy v. Walcutt (1928), 118 Ohio St. 442.
The more reasonable approach advanced in Dick, supra, is also consistent with Evid. R. 301 which provides that a presumption does “* * * not shift * * * the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.” The ultimate burden of persuasion is not shifted by a presumption and always remains with the original party. In this case the burden of persuasion concerning appellee’s affirmative defense, based on policy exclusion, is originally cast and should remain on the insurer. Continental Ins. Co. v. Louis Marx & Co. (1980), 64 Ohio St. 2d 399, 401 [18 O.O.3d 539]. The question of whether the insurer has met its burden of persuasion by rebutting the presumption would then be for determination by the trier of fact.
Inasmuch as the court of appeals expressly followed the Carson view,2 I would reverse the judgment of the appellate court and remand the cause for further proceedings consistent with this opinion.
By using the bipartite expression “burden of proof,” the majority has blurred the distinction between the term’s two components: production and persuasion. Production is indeed an issue to be determined by the trial judge. However, if met, the party who has now made out a prima facie defense is only halfway home. The burden of persuasion relative to proving the affirmative defense must still be met in the mind(s) of the finder of fact.
The court of appeals expressed “* * * misgivings about Ohio’s rule on the presumption against suicide * * *.” Writing for the majority, Judge Donald Ford observed that “[t]he Ohio Supreme Court in its majority opinion in Carson has muddled the concepts here addressed by the unfortunate intertwining of the phrases ‘rule of law’ and ‘rule of evidence’ or ‘procedure’ in its opinion. * * * It is this writer’s judgment that it would be pref err able [sic] to follow the 'rule of law approach and permit the presumption to be weighed with other opposing evidence. This is the traditional function of the jury or judge as the trier of fact. Unfortunately, we are confined to the law as expressed by the Ohio Supreme Court in Carson, supra. However, the continued application of Ohio’s qualified approach will lead to perpetual floundering in Cardozo’s ‘Serbonian Bog.’ ” (Emphasis added.)
I am afraid today’s decision has cast those floundering in the “bog” an anchor instead of a life preserver.