Raymond v. Great Am. Indem. Co.

Citation163 A. 713
Decision Date06 December 1932
CourtSupreme Court of New Hampshire

Transferred from Superior Court, Sullivan County; Sawyer, Judge.

Debt by Victor Raymond, by next friend, against the Great American Indemnity Company. Case transferred from the trial term on plaintiff's exception to a directed verdict for defendant.

Judgment on the verdict.

Debt under Laws 1927, c. 54, p. 68, § 6, subd. 1. Trial by jury. The plaintiff had recovered judgment in a personal injury action against the owner of an automobile. When injured he and five others were passengers in the car and the owner was driving it.

An insurance policy issued by the defendant to the owner was then in force. It set forth that the defendant, "in consideration of the premium and the declarations herein and subject to the provisions herein, as respects accidents sustained * * * by reason of the ownership or maintenance of any automobile disclosed in declaration No. 6 and the use thereof as disclosed in declaration No. 8," agreed to pay the insured's liability, to any person for personal injuries. Declaration No. 8 was in part this: "The disclosed automobile will not be rented or used to carry passengers for a consideration * * *, and the purposes for which they will be used are, (a) private passenger type automobiles—pleasure and business purposes, (b) commercial vehicles—only in the business as described in declaration No. 3. * * *" This declaration No. 3 referred to business of the insured not engaged in at the time of the accident.

The policy also stated that it was subject to certain provisions, among which were some marginally entitled "Exclusions," and in part specifying that the policy did not "cover * * * while any automobile disclosed herein is * * * being used to carry passengers for a monetary consideration. * * *"

Transferred by Sawyer, C. J., on the plaintiff's exception to a directed verdict for the defendant. Other facts appear in the opinion.

Barton & Shulins, of Newport, and Leahy & Leahy, of Claremont (J. M. Shulins, of Newport, orally), for plaintiff.

Warren, Wilson, McLaughlin & Bingham, of Manchester (Robert P. Bingham, of Manchester, orally), for defendant.


The issues to be considered relate to sufficiency of evidence and burden of proof. When the plaintiff was injured, the owner of the automobile was carrying two special and four regular passengers. The former and the plaintiff, who was one of the latter, testified that they rode free. Of the latter, two testified that they paid for their transportation. One of the latter and the owner did not testify.

Since the owner was not insured if any of the passengers paid, the free riding of the plaintiff does not make the defendant liable. The insurance did not cover the owner's use of the car when he carried any paying passengers. If the burden of proof was on the plaintiff to show that the car was not thus used when he was injured, his case fails unless the evidence will support a finding excluding such use.

Consideration of the evidence leads to the conclusion that it is deficient in proof of the finding. The owner was employed in a machine shop at Windsor, Vt., and drove the car back and forth to his work from Claremont where he lived. The distance each way is about eight miles. At the time of the accident he had thus driven the car for about two months, regularly carrying five passengers who were all his fellow employees.

If the two regular passengers who testified that they paid might not be believed, the disbelief would not be enough to warrant a finding that they rode free. Lack of proof that they paid is no proof that they did not. Richardson v. Connecticut Valley Lumber Company, 77 N. H. 187, 189, 90 A. 174; Clairmont v. Cilley, 85 N. H. 1, 7, 153 A. 465. Nor may their extrajudicial statements that they did not pay be used as proof that such statements were true. Statements of this character are admitted only to discredit the testimony of their makers. Zogoplos v. Brown, 84 N. H. 135, 137, 146 A. 862, and cases cited.

The free riding of the plaintiff and of the special passengers does not help to prove how the others rode. The arrangements for the former's transportation were made separately with the owner in each instance. The plaintiff testified that he and the owner were friends. One of the special passengers testified that the owner asked him to ride. The other testified that, while he did not pay and while nothing was said about pay, ho could not say that he would not have paid except for the accident. If this testimony did not leave his standing as a free passenger in doubt, in any event his situation is not exemplary of that of the other passengers. Nor, in the light of the circumstances disclosed, do the situations of the plaintiff and of the invited special passenger help to show whether the others were carried free or paid. There is no evidence tending to show the arrangements made with them for their riding.

It is therefore problematical whether the owner was carrying any passengers for hire. The evidence leaves it inconclusive and incapable of ascertainment. At least, no inference that none of them paid can fairly be drawn. If the plaintiff had the burden of showing that none paid, he has not sustained it. No acceptance of any evidence for the defendant is thus predicated. It is a case of the plaintiff's insufficiency of evidence in proof of an essential element of his cause.

In respect to the burden of proof, not in its primary sense of the risk of nonpersuasion as a definite and unchanging risk imposed according to the pleadings, but in its secondary sense as a rule by which the burden is shifted according to the progress of the trial, the law here in force invokes it according to fairness and expediency. "Justice and convenience may require that in certain phases of a case the party not having the burden of proof shall produce evidence, upon pain of that issue being decided against him if he declines to do so." Spilene v. Salmon Falls Mfg. Company, 79 N. H. 326, 328, 108 A. 808, 809. "The logic of the general principle that the plaintiff should have the duty to go forward and the risk of nonpersuasion has always been modified by the application of what was at the time deemed to be the common sense of the situation." Ib., 79 N. H. 329, 108 A. 808, 809.

Presumptions established either by the logic of ordinary thought or by expediency are largely relied upon to sustain situations in which the burden is thus shifted, and precedents are given the full force of authority. But a new situation, such as is presented here, must he passed upon by treatment dictated by the general principles declared. What is just and sensible in securing a reasonable progress and fair outcome of the trial is decisive. The predominance of the primary rule by which the pleadings fix the general risk of nonpersuasion is to yield, however, only so far as the special situations are deemed to justify its invasion.

In other jurisdictions it is almost invariably held that the burden of proving an excepted risk of an insurance policy rests upon the insurer. The rule appears to have been developed through the same policy which is behind the generally prevailing rule of construction resolving all doubts in a policy against the insurer. The rule of construction by itself may not logically account for the rule of burden of proof without a subsidiary rule that as to excepted risks the policy is to be read as calling for the insurer to show them. Such a subsidiary rule does not appear to have been very definitely adopted, however. While there is much natural force in imposing the duty of proof of exceptions, exemptions, and excuses on one claiming their benefit, the courts have not gsne so far as to construe the insurance contract in a manner by which its agreement is to render it difficult for the insurer to maintain its defences.

But in this state insurance policies are treated by the same principles of construction employed as to other contracts, and the rule that the insured shall have the benefit of all doubts is not in force hero. Sauriolle v. O'Gorman, 85 N. H.——, 103 A. 717. And any implication that excepted risks are for the insurer to prove is hardly to be discovered in the policy. It is a matter not naturally to be found in its implied terms. A reasonable reading of the policy by the insured would not give him to understand that the insurer bound itself to prove any excepted risk it might claim in defending an action on the policy.

Yet without the benefit of such an implication of the policy, justice and expediency may well unite to require the insurer to establish its claim of an excepted risk. There is merit in the position that special defenses in claim of a situation taking a case out of general liability should be proved, although the defenses may be incidental to the general issue and maintainable under it. It may logically be said that, if an excepted risk is not shown, the probabilities are ordinarily against its existence, and hence a plaintiff's general burden of proof does not fail if the evidence is silent in respect to the risk or does...

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