Travelers Ins. Co. v. Drumheller, 2994.
| Decision Date | 15 November 1938 |
| Docket Number | No. 2994.,2994. |
| Citation | 25 F. Supp. 606 |
| Court | U.S. District Court — Western District of Missouri |
| Parties | TRAVELERS INS. CO. OF HARTFORD, CONN., v. DRUMHELLER. |
Mosman, Rogers, Bell & Buzard, of Kansas City, Mo., for plaintiff.
Clif Langsdale and Roy Rucker, both of Kansas City, Mo., for defendant.
The only really controverted issues in this case are two, one of law, one of fact. We shall present our views only on these issues in this short memorandum.
1. The issue of law is this: In a declaratory judgment proceeding brought by an insurance company praying a judgment that it is not liable to the beneficiary in a policy of accident insurance, that it is not liable on the theory that the insured died from natural causes and that he did not die from accident, is the burden on the plaintiff to prove that the insured did not die from accident?
Without looking into the books, we would say at once (as we did say at the trial) that, of course, the burden is on the plaintiff. Elementary principles support that conclusion. One who comes into court asking a judgment against another, whether it be a declaratory judgment only or one capable of immediate enforcement, must prove that he is entitled to that judgment. If an insurance company, which, normally, would be defendant in an action to enforce a contract of insurance, desires, for the sake of certain advantages, to initiate the proceeding and to become plaintiff, it must assume the ordinary burdens of a plaintiff. Asking a judgment that it is not liable, it must prove it is not liable. In this case it can do that only by proving the insured did not die from accident.
We would reach that conclusion without looking into the books. We must, however, examine the cases and authorities cited by plaintiff for what seems to us a heterodox position.
The only case cited which really touches the question is Travelers Insurance Company v. Greenough et al., 88 N.H. 391, 190 A. 129, 109 A.L.R. 1096. The court held there that, under the New Hampshire Declaratory Judgment Act, the burden of proof is on the defendant in an action for declaratory judgment brought by an insurer to determine whether its motor vehicle liability policy furnished coverage for a certain accident. The reasoning of the opinion would apply to a case of the character now before us.
To a certain extent the New Hampshire opinion turns upon the language of the New Hampshire Act which is said in the opinion to authorize a declaratory judgment proceeding "to determine the question as between the parties." It is said in the opinion that the Act "does not change their relative normal positions i. e. the normal positions of the parties in which one seeking redress must establish issues of fact in his favor by the greater weight of evidence." Page 131.
But the Federal Act (Title 28, Sec. 400, U.S.C., 28 U.S.C.A. § 400) vests the courts of the United States with power "upon petition, declaration, complaint, or other appropriate pleadings to declare rights * * * of any interested party petitioning for such declaration, * * *." Non-liability is one of the "rights" referred to in the Act. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000. Certainly the declarant must plead in his "petition, declaration, (or) complaint" the facts which entitle him to...
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