RIVERA v. STATE FARM M.A. INS. CO

Insurance — Automobiles — Exclusionary clause — Member of insured's family residing in same household — Evidence — Burden of proof — Pleadings.

In this case, in which it appeared that plaintiff, Antonio Rivera, was the driver of an automobile in which Alphonso Rivera was a passenger and was injured in an accident; that plaintiff, insured by defendant against liability in the event of an automobile accident, instituted the instant action against defendant for breach of its contract to defend him and to pay the judgment recovered against him in an action by Alphonso Rivera; that defendant admitted all the essential allegations in plaintiff's complaint, but in new matter raised the defense that the injured passenger, Alphonso, was a cousin of plaintiff and resided in his household, and that the policy provided that it was not applicable for injury to the insured or any member of the family of the insured residing in the same household as the insured, and plaintiff in his reply alleged that Alphonso was a boarder and not a member of the household; that at the trial plaintiff introduced into evidence the admitted allegations of the complaint and then rested, defendant produced no evidence, and a verdict was directed for plaintiff; and that the court below, holding that the pleadings did not determine the issue as to whether Alphonso was a member of the insured's family, residing in his household, and that, since defendant had failed to introduce any evidence on the matter, it had failed to meet the burden upon it to prove the condition described in the exclusionary clause, refused defendant's motions for a new trial and for judgment n.o.v.; it was Held that the judgment of the court below should be affirmed.

Argued December 16, 1964.