# First National Bank v. Malady

> Oregon Supreme Court · January 12, 1966 · 242 Or. 353

URL: https://www.frixlaw.com/law-library/cases/9626142

## Case

- **Full name:** FIRST NATIONAL BANK Et Al v. MALADY Et Al, MASTERS
- **Court:** Oregon Supreme Court
- **Decided:** January 12, 1966
- **Citations:** 242 Or. 353; 408 P.2d 724
- **Precedential status:** Published
- **Opinion:** Concurrence by Goodwin
- **Judges:** McAllister, Perry, Sloan, O'Connell, Goodwin, Deneoke, Holman
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9626142

## How later opinions describe it (automated extraction)

- holding that that rule ordinarily applies in Oregon

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9626142. Public record. Not legal advice.