Opinion

First National Bank v. Malady

  • 242 Or. 353
  • 408 P.2d 724
Court
Oregon Supreme Court
Filed
Jan 12, 1966
Status
Published
Author
Goodwin
On the bench
McAllister, Perry, Sloan, O'Connell, Goodwin, Deneoke, Holman
Cited by
29 cases

holding that that rule ordinarily applies in Oregon

How later courts described this case

  • holding that that rule ordinarily applies in Oregon
  • generally adopting that position but leaving room for some variation when the circumstances warrant it
  • the general rule that the moving party must bear the burden of proving the prima facie elements of his claim are also applicable in the vast majority of declaratory actions
  • insurer filing declaratory judgment action has the burden of proving noncoverage

Written by the judges who cited it.

The opinion

GOODWIN, J.,

specially concurring.

I would affirm the judgment below for the reason that the instruction on the burden of proof could not have been prejudicial. Assuming for the sake of argument that the trial court was wrong in laying upon the insurer the burden of proving its allegation that an uninsured person was driving the automobile (instead of requiring those claiming coverage to prove that an insured person was driving), the error, if it was error, could not have made any difference to a proper disposition of the case.

The undisputed evidence was that an insured driver was driving the last time any witness saw the automobile being driven. The only witnesses who could shed light upon the identity of the driver at the time of the accident were the persons who removed the bodies. These witnesses were wholly unable to say who appeared to have been driving. Upon such a state of proof, there is no evidence that an uninsured driver was driving at the critical time. Accordingly, the jury could have contributed to the inquiry nothing but speculation. The persons claiming coverage were entitled to it as a matter of law.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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