States. That the absence of such contention is in accord with the law seems plausible.
In the case of Lynch v. United States, 1934, 292 U.S. 571 at page 579, 54 S. Ct. 840, at page 843, 78 L. Ed. 1434, the Supreme Court stated that, 'When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals more, in the case of Standard Oil Co. v. United States, 1925, 267 U.S. 76, at page 79, 45 S. Ct. 211, at page 212, 69 L,Ed. 519, it was said that, 'When the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business.' It follows, therefore, that 'the United States in this case had a proprietary status, and does not appear in its sovereignty relation.' Cushman v. United States, D.C.S.D.Cal. 1942, 43 F.Supp. 810, 811, appeal dismissed, 9 Cir., 131 F.2d 1021. Thus, construction of policy provisions is not influenced by the fact that the insurer is the United States; rather, a liberal construction in favor of the insured has been given. See McClure v. United States, 9 Cir., 1936, 95 F.2d 744, 750, affirmed, 305 U.S. 472, 59 S. Ct. 335, 83 L. Ed. 296; Cushman v. United States, supra.
Finally, while there are numerous factors that may enter into consideration of placing the burden of proof,
'it is merely a question of policy and fairness based on experience in different situations.' 9 Wigmore, Evidence, 3d Ed.1940, p. 275. In my opinion, there is no warrant in finding that the rules applicable to similar cases where both parties to the action are private parties should not be followed here merely because the insurer is the United States.
The nub of the controversy, then, is whether under the insurance law, nonpayment of premiums is an affirmative defense of the insurer. The courts have apparently split on the ultimate determination. On the one hand a number of cases conclude that the plaintiff has the affirmative, or that proof of payment of premiums is an essential part of the plaintiff's case, hence, the risk of non-persuasion rests upon that party. On the other hand, many cases have determined that nonpayment of premiums is an affirmative defense as to which the insurer carries the risk of non-persuasion. The cases are collected and discussed in 95 A.L.R. 745 et seq., an annotation to Topinka v. Minnesota Mutual Life Ins. Co., 1933, 189 Minn. 75, 248 N.W. 660, a case taking the former view.
The controversy apparently centers around the proper construction of the insurance contract: the cases in the former group taking the view that the policy is a year to year contract, payment of premiums therefore being a condition precedent; the cases in the latter group adopting the theory that a contract of insurance is a contract for life subject to forfeiture for failure to pay premiums, a condition subsequent. See 3 Couch on Insurance (1929) § 582. The prevailing weight of authority, however, adopts the theory that the payment of premiums, other than the first premium, is a condition subsequent, hence the defense is an affirmative one resting upon the insurer. See Roseberry v. Home Life Insurance Co., 1936, 120 Pa.Super. 450, 454, 183 A. 121; 95 A.L.R. 749. The fact that the insurer must prove a negative is not novel. See 9 Wigmore, Evidence, p. 274. The view of the weight of authority has long been accepted by the federal courts. See New York Life Ins. Co. v. Statham, 1876, 93 U.S. 24, 23 L. Ed. 789; Thompson v. Knickerbocker Life Ins. Co., 1881, 104 U.S. 252, 26 L. Ed. 765; Burnet v. Wells, 1933, 289 U.S. 670, 671, 679, 53 S. Ct. 761, 77 L. Ed. 1439; McMaster v. New York Life Ins. Co., C.C.Iowa 1899, 90 F. 40, affirmed, 8 Cir., 99 F. 856, reversed on other grounds 183 U.S. 25, 20 S. Ct. 10, 46 L. Ed. 64; Murray v. State Life Ins. Co., C.C.Pa. 1907, 151 F. 539, affirmed, 3 Cir., 1908, 159 F. 408; Security Mutual Life Ins. Co. v. Kleutsch, 8 Cir., 1909, 169 F. 104.
The defendant relies, nevertheless, on the case of Rackoff v. United States, 2 Cir., 1935, 78 F.2d 671. There, an amended answer asserted that the policy had lapsed for nonpayment of premium due October 1, 1919. The Court, 78 F.2d at page 672, stated: ' * * * the insured evidently failed to pay his premium on October 1, 1919, and the case seems to have been tried on that theory, The plaintiff had the burden of proving that any later premiums were paid and offered no such evidence.' The court then went on to the next issue, which is irrelevant here.
From the brief reference made by the Court, it is difficult to determine whether the burden placed upon the plaintiff therein was the burden of persuasion, or the burden of going forward with the evidence.
It may well be said because of the language employed by the court, that it had reference to the burden of going forward with the evidence
However, despite the controversy, those courts, as in Topinka v. Minnesota Mutual Life Ins. Co., supra, which have held that proof of payment of premiums is essential to the plaintiff's case, have further decided that, by adducing evidence of the execution of the insurance contract and the granting of insurance, and upon proof of the event which matures the policy, the plaintiff establishes a prima facie case. The Topinka case is illustrative; see also 95 A.L.R. 755. The effect of such decision is to shift to the defendant insurer the burden of going forward with the evidence in rebuttal.
In the instant case, the plaintiff has established that the contract was executed and that the insurance was granted; there is no question as to the date and the death of the insured. Consequently, even if the risk of non-persuasion were on the plaintiff, the defendant herein has the burden of going forward with the evidence.
Since the defendant's motion to dismiss is made under Rule 41(d), it has the opportunity of producing evidence, and neither hardship nor injustice results. In this connection it may be added that generally the burden of persuasion settles on the party on whom it rests more lightly. That party in this case is the defendant, for it is a simple matter to show, by the proper records, that payments of the premiums were not received. Such evidence would be effective. See Roseberry v. Home Life Ins. Co., supra, 120 Pa.Super.at page 456, 183 A.at page 124. The plaintiff, on the other hand, would meet with the very difficult task of establishing payments made by a person now deceased, and would be faced with defeat early in the trial because of the deceased's failure to maintain records of payment.
For the reasons stated the motion is dismissed, and an order may be entered accordingly.