Zenner v. Goetz

• Decision Date: 23 November 1936
• Docket Number: 228
• Parties: Zenner v. Goetz (Travelers Indemnity Co., Appellant)
• Court: Pennsylvania Supreme Court

188 A. 124

324 Pa. 432

Zenner v. Goetz (Travelers Indemnity Co., Appellant)

No. 228

Supreme Court of Pennsylvania

November 23, 1936

Argued October 6, 1936

Appeal, No. 228, March T., 1936, by garnishee, from judgment of C.P. Allegheny Co., Jan. T., 1935, No. 2447, in case of John Zenner v. Anthony A. Goetz and The Travelers Indemnity Company, garnishee. Judgment affirmed.

Attachment execution proceeding. Before SWOYER, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff and against garnishee. Garnishee appealed.

Error assigned was refusal of judgment n.o.v.

The judgment is affirmed, at appellant's cost.

Robert D. Dalzell, of Dalzell, McFall & Pringle, for appellant.

Burtt Harris, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES JJ.

OPINION

MR. JUSTICE MAXEY:

Appellant defendant's liability insurance carrier, was brought into the case by garnishment proceedings after plaintiff recovered judgment against defendant. As garnishee it now complains of the entry of judgment against it on the ground that plaintiff failed to show liability under the policy issued, and hence that its motion for judgment n.o.v. should have been granted.

Plaintiff sued defendant in an action for personal injuries alleged to have resulted from defendant's negligent operation of his automobile. Appellant's counsel entered their appearance for defendant, but before trial the court permitted this appearance to be withdrawn. Eventually judgment for plaintiff in the amount of $5,000 and costs was entered against defendant. When this was not paid, plaintiff issued attachment execution against appellant. In its answers to plaintiff's interrogatories appellant admitted the issuance to defendant of a policy of automobile insurance and attached a copy of the policy. It further admitted that at the time of the accident which injured plaintiff the policy was in force.

At the trial of the garnishment proceeding, plaintiff offered in evidence the record of the previous trial and appellant's admissions in the answers to the interrogatories, and rested its case. Appellant then produced two witnesses who testified that they were passengers for hire in defendant's automobile at the time the accident occurred. The purpose of this evidence was to show that the insurance policy did not cover the accident in question, because the policy expressly provided that the purposes for which the automobile was to be used were "pleasure and business," which excluded "the carrying of passengers for a consideration," except "when such uses are definitely declared and rated," as was not the case. Appellant then rested its case. Plaintiff offered no rebuttal whatever. The trial judge sent the cause to the jury on the question of the credibility of appellant's two witnesses. The jury found a verdict for plaintiff, appellant's motion for judgment n.o.v. was denied, and judgment was entered against appellant garnishee.

At the trial appellant's defense was that defendant at the time of the accident was transporting passengers for compensation and consequently his insurance policy did not cover the liability assumed by the company. It contended, then as now, that to recover against it, plaintiff was required to show compliance by defendant with all the terms of his policy, including the fact that when the accident occurred the latter was not engaged in carrying passengers for hire. Plaintiff's position is that this was a matter of affirmative defense, constituting an exception to the general risk insured against, which the garnishee was compelled to show in order to escape liability. Plaintiff rests upon the proposition that the duty of coming forward with evidence was the garnishee's after plaintiff had made out what he contended was a prima facie case.

When plaintiff proved that the liability had been incurred by defendant, in the form of a judgment entered against him, and that this was a liability explicitly insured against by appellant's issuance of a policy then in force, he did make out a prima facie case which entitled him to have the issues submitted to the jury. That he made out his case largely through appellant's admissions was immaterial. He was not required in addition to show that none of the risks excepted in the policy, of which carrying passengers for hire was only one, were present when the accident occurred. When a defendant seeks to avail himself of a substantive defense reserved in a policy of insurance, when he relies upon a fact specifically mentioned in a policy as relieving him of a liability generally assumed in the policy, the defense becomes an affirmative one and the defendant at that point must shoulder the duty of coming forward with evidence in support of what he affirms. See Bowers v. Great Eastern Casualty Co., 260 Pa. 147, 103 A. 536; Watkins v Prudential Ins. Co., 315 Pa. 497 at 508, 173 A. 644; and Home Benefit Assn. v. Sargeant, 142 U.S. 691. A defendant's duty of coming forward with evidence at certain stages of a trial is sometimes loosely referred to as "burden of proof." The "burden of proof" rests throughout the trial on the party affirming facts in support of his case against a defendant, while "the burden of coming forward with evidence" may shift from side to side during the progress of a trial. See Henes v. McGovern, Admr., 317 Pa. 302 at 310, 176 A. 503. We said in Fazio v. Pittsburgh Rys. Co., 321 Pa. 7, 12, 182 A. 696: "It is a well-recognized principle of evidence that he who has the positive of any proposition is the party called upon to offer proof of it. It is seldom, if ever, the duty of a litigant to prove a negative until his opponent has come forward to prove the opposing positive." See also Wright et al. v. Straessley, 321 Pa. 1, 182 A. 682, and 5 Wigmore on Evidence (2d ed.), 441, sec. 2486. If the burden was on plaintiff in the present case to negative the risk excepted in the policy, "it would necessarily follow that, for same reason, he was required to establish the nonexistence of all the other stringent provisions by which the policy might be avoided," as this court said in Fisher v. Fidelity Mutual Life Assn., 188 Pa. 1, 13, ...