General Cas. Co. of Wis. v. Hines

• Decision Date: 06 February 1968
• Docket Number: No. 52778,52778
• Citation: 261 Iowa 738,156 N.W.2d 118
• Parties: GENERAL CASUALTY COMPANY OF WISCONSIN, Appellant, v. Donald R. HINES, James E. Hines, John Davis, Linda Davis, and Jessie B. Ellison, Appellants.
• Court: Iowa Supreme Court

Page 118

156 N.W.2d 118

261 Iowa 738

GENERAL CASUALTY COMPANY OF WISCONSIN, Appellant, v. Donald R. HINES, James E. Hines, John Davis, Linda Davis, and Jessie B. Ellison, Appellants.

No. 52778.

Supreme Court of Iowa.

Feb. 6, 1968.

Mosier, Mosier, Thomas, Beatty & Dutton, Waterloo, for appellant.

Kildee, Keith, Gallagher, Lybbert & Martin, Waterloo, for appellee Jessie B. Ellison.

K. L. Kober, Waterloo, for appellees Donald R. Hines and James E. Hines.

Evans & Hinton, Waterloo, for appellees John Davis and Linda Davis.

RAWLINGS, Justice.

By petition for declaratory judgment plaintiff-insurer sought to avoid liability with regard to a particular automobile-pedestrian accident. Defendants resisted.

Trial court held adverse to plaintiff and it appeals. We affirm.

Defendant James E. Hines, operating an automobile owned by John and Linda Davis, struck and injured defendant-pedestrian Jessie B. Ellison. At time of the accident defendant Donald R. Hines, father of James, held a policy of insurance issued by plaintiff.

Among other things the omnibus clause of this policy provided liability coverage with respect to a non-owned automobile operated by a relative of the named insured. Without question James was such a relative.

Specifically, coverage provided is as follows:

'PERSONS INSURED: The following are insureds under Part 1:

'(a) * * *

'(b) with respect to a non-owned automobile,

(1) the named insured,

(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, and

(3) * * *

'DEFINITIONS: Under Part 1:

'* * *

"relative' means a relative of the named insured who is a resident of the same household;

'* * *

"non-owned automobile' means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile;'

Factually, the record discloses, without dispute, John Davis took the 1956 Mercury convertible here concerned to the Hines residence in Waterloo for the express purpose of there displaying it for sale and attracting possible buyers. The keys were left with the car. From this point on the evidence is in conflict.

The basic issues presented on this appeal are, (1) whether the accident-involved-vehicle, at time here concerned, was being operated with permission or reasonably believed permissive use of the owner, and (2) whether it was furnished for regular use by either the named insured or any relative.

I. Extent of coverage of an insurance policy is a proper subject for a declaratory judgment action. Rules 261--269, R.C.P.; Merchants and Farmers State Bank, etc. v. Rosdail, 257 Iowa 1238, 1243--1244, 131 N.W.2d 786, 136 N.W.2d 286; Hartford Acc. & Ind. Co. v. O'Connor-Regenwether Post No. 3633, V.F.W., 247 Iowa 168, 171--172, 73 N.W.2d 12; and 22 Am.Jur.2d, Declaratory Judgments, section 41, page 896. See also Katz Investment Co. v. Lynch, 242 Iowa 640, 647--648, 47 N.W.2d 800.

It is evident a justiciable controversy was here presented.

II. Regardless of the fact it brought the action for declaratory relief, and in so doing made certain affirmative allegations, plaintiff contends the burden was upon defendants to prove coverage under the policy.

The petition filed by it alleges, inter alia, '* * * the policy was violated and not in effect at the time of said accident * * *.'

Rule 344(f)(5), R.C.P. provides: 'Ordinarily the burden of proof follows the pleading; that is, he who pleads and relies upon the affirmative of an issue must carry the burden of proving it.'

More specifically, 2 Anderson, Actions for Declaratory Judgments, Second Ed., section 375, pages 881--883, states: 'What is meant by the 'burden of proof' is reflected by the Wigmorean characteristic expression of, 'the risk of non persuasion' and the concomitant obligation to go forward with the proof, when it might result in a failure to convince the trier of facts.

'* * * the burden of proof in a declaratory judgment action is the same as in ordinary actions at law or suits in equity, and the plaintiff bringing a declaratory judgment action must, in order to succeed, prove his case in accordance with and within the meaning of such rules, and this rule is not affected by the fact that a negative declaration is sought--of nonliability. It may be stated as a general rule, that the burden of proof is upon the plaintiff to show that conditions exist to justify the court in exercising its discretionary powers to grant declaratory relief pursuant to the declaratory judgment statute. It seems that an applicant for a declaratory judgment has the burden of showing that present justiciable controversy exists, and if this fact is not shown then a cause of action for declaratory relief is not established. So, also, where the plaintiff makes allegations which are denied by the defendant, then the onus is thrown on the plaintiff to prove the allegations charged in his pleading.

'To ascertain on which party the burden of proof lies the pleadings should be consulted, and the question is which of the parties would suffer an adverse judgment if no evidence was received and when that matter is determined, that party has the burden of proof.'

See also Sanborn v. Maryland Cas. Co., 255 Iowa 1319, 1321, 125 N.W.2d 758; Pacific Ins. Co., etc. v. Christianson, 253 Iowa 241, 243, 111 N.W.2d 679; Fortgang Brothers, Inc. v. Cowles, 249 Iowa 73, 76, 85 N.W.2d 916; 26 C.J.S. Declaratory Judgments § 148, page 351; 22 Am.Jur.2d, Declaratory Judgments, sections 97--98, pages 963--966; and Annos. 23 A.L.R.2d 1243.

Plaintiff cites and leans rather heavily on Western Mutual Ins. Co. v. Baldwin, 258 Iowa 460, 137 N.W.2d 918. We do not find it applicable. That case involved the cooperation clause of an insurance policy. The real issue was not whether the insured had or had not cooperated with the company. Rather, the question presented was whether failure on the part of insured to cooperate was prejudicial to the insurer. Actually burden of proof, as presented in the case at bar, was not there involved.

Other cases cited by plaintiff on this issue are likewise deemed inapplicable.

Authorities on the subject at hand have admittedly adopted views which are in varying degrees of conflict. However, under the factual situation peculiar to the case now before us, we find no compelling cause to disagree with the principles expressed by Anderson, supra.

III. In any event plaintiff is hardly in a position to here effectively assert an issue as to burden of proof.

This case was tried to the court. On this subject generally see Wright v. Thompson, 254 Iowa 342, 353, 117 N.W.2d 520.

And plaintiff, without challenge, objection or resistance at any time or in any manner, prior to trial proceeded with presentation of evidence as is usual on the part of one having the burden of proof.

Dealing with a similar situation the court said in Liberty Mutual Insurance Co. v. Sweeney, 3 Cir., 216 F.2d 209, 211: 'This question of what happens in a declaratory judgment suit when the plaintiff has undertaken the ordinary burden which a plaintiff has in bringing an action has been dealt with admirably in the Ninth Circuit in Pacific Portland Cement Co. v. Food Machinery & Chemical Corp., 9 Cir., 1949, 178 F.2d 541. Here was a case in which the plaintiff in a declaratory judgment suit had gone ahead and offered its testimony in full. Under these circumstances the Court said: 178 F.2d at page 547 'it is idle to insist that the burden of proof was not upon the appellant. If it was not, the appellant certainly spent many days proving a negative. We must assume that experienced counsel will not adopt such trial tactics unless they are of the view, and Desire to give the impression to their opponent and to the court, that they are going forward with evidence which it is their duty to produce. And, having done so, they cannot very well insist that, in reality, they assumed a burden which was not theirs.' See also Bauer v. Clark, 7 Cir., 1947, 161 F.2d 307, 401. The New Hampshire rule announced in Greenough supra, (Travelers Ins. Co. v. Greenough, 88 N.H. 391, 190 A. 129, 109 A.L.R. 1096) has likewise been qualified. In Hartford Accident and Indemnity Co. v. Lougee, 1938, 89 N.H. 222, 196 A. 267, 269, the court said: 'It (Plaintiff) voluntarily assumed the ordinary position of a plaintiff in opening the case and accepted the order for its closing. It thereby assumed the burden of proving it had not insured the defendant instead of requiring that action be taken in assertion of the claim of insurance. * * * It would be unfairly inconsistent for the plaintiff to take the advantages of the order of proceeding in the trial without submitting to the normally attendant burdens.''

Under existing circumstances we find no reversible error on the part of the trial court in concluding, at close of hearing, the burden of proof was upon plaintiff.

IV. The record fails to disclose whether the action brought by plaintiff was in equity or law. And the trial court gave no consideration to that phase of the case. However, we deem this to here be of little or no significance.

Generally, in an action for declaratory judgment, findings of the trial court, as to conflicting evidence, are conclusive on an appellate court if supported by substantial evidence. Herrmann v. Fireman's Fund Insurance Company, 127 C.A.2d 560, 274 P.2d 501, 506--508; Decter v. Stevenson Properties, 39 C.2d 407, 247 P.2d 11, 18; 26 C.J.S. Declaratory Judgments § 164, page 385; and 2 Anderson, Actions for Declaratory Judgments, Second Ed., section 462, page 1103. See also rules 344(f)(1), (17), R.C.P.; and Hamilton v. Wosepka, Iowa, 154 N.W.2d 164, 166.

But if the case stands in equity, our review is de...