We must decide which party should have the burden of producing evidence in a suit brought by a judgment creditor against the insurer of the judgment debtor. The dispute centers around evidence relating to conditions precedent in the policy. The trial court concluded the burden was upon the judgment creditor. We reverse.
Dairyland Mutual Insurance Co. issued a policy of insurance to Edward J. Ruhoff, a resident of Wisconsin, insuring him against liability growing out of the use.of his automobile. The policy contained two conditions which are pertinent. The insured was required to “immediately forward * * * every demand, notice, summons, or other process received by him *85* * The insured was also required to cooperate with the company and to attend hearings and trials when requested, assist in effecting settlements, securing and giving evidence in any suits. The policy also provided these requirements were conditions precedent to any action against the company and limited the right of any judgment creditor of the insured accordingly.
While driving his car when the policy was in effect, Ruhoff had a collision in Iowa with a car driven by Walter R. Haynes. A suit was brought by Haynes and his wife against Ruhoff. For simplicity we shall hereafter refer to Walter Haynes and Ruth Haynes in the singular.
Ruhoff filed a traffic charge against Haynes. Subsequently, the local Iowa sheriff unsuccessfully tried to telephone Ruhoff about a hearing date on the charge. The sheriff also called Dairyland’s agent who sold the policy to Ruhoff. The sheriff then wrote Ruhoff about a hearing date and sent a subpoena. Ruhoff’s attorney advised him against returning to Iowa for the hearing unless expenses were advanced, and Ruhoff did not return. Shortly thereafter, Ruhoff received notice by mail of a damage action against him brought by Haynes. Ruhoff did not appear in court in response to that notice. The Haynes took default which this court upheld. Haynes v. Ruhoff, 261 Iowa 1279, 157 N.W.2d 914.
Execution on the judgment was later returned unsatisfied. Haynes then brought this action on the policy against Dairyland. The petition alleges the matters outlined above but omits to plead performance of conditions precedent in the policy.
Dairyland filed answer in which it averred, among other things, that Ruhoff failed to notify Dairyland of the commencement of the damage action and failed to cooperate “as was required by his policy of insurance.” Haynes filed reply denying Dairyland’s affirmative averments.
The cause went to trial before a jury. Haynes introduced proof of the allegations in the petition but offered no evidence regarding the subject of affirmative aver-ments in Dairyland’s answer. Haynes then rested. Thereupon, Dairyland rested. Dairyland then moved for a directed verdict on the ground Haynes introduced no proof of performance of the conditions precedent regarding notice and cooperation by Ruhoff. Haynes moved for a directed verdict claiming the right to recover as a matter of law after both parties had rested. In the alternative Haynes moved he be permitted to reopen and offer additional evidence. The trial court sustained Dairy-land’s motion and overruled Haynes’s entire motion. The trial court also overruled Haynes’s subsequent motion for a new trial.
Two questions are presented. Our answer to the first makes it unnecessary for us to consider the second.
I. Should Haynes or Dairyland bear the burden of producing evidence of compliance or noncompliance with conditions precedent in the insurance policy? Dairyland is in possession of all information on what may or may not have transpired between itself and Ruhoff. It may well be, as suggested in argument, that Ruhoff by the time of trial had become hostile and uncooperative with Dairyland. But Dairyland was one of the parties to the transaction which is the subject of the proof in question. The company presumably kept careful files on every transaction and had them in possession. Having been one of the parties to any transaction with Ruhoff, Dairyland had firsthand knowledge thereof. This intimate knowledge would more than compensate for any disadvantage resulting from any estrangement between Dairyland and Ruhoff. The burden of proving a factual issue, or at least the burden of going forward with the evidence on that issue should rest upon the party who has possession of facts or information lacking to the other. 29 Am.Jur.2d, Evidence, section 131, page 164, 31A C.J.S. Evidence § 113, page 190.
*86Modern discovery techniques are sometimes urged in justification of abrogating the long established rule of law just announced. See Tortora v. Gen. Motors Corp., 373 Mich. 563, 130 N.W.2d 21. We subscribe to the rule and not to the exception. Plainly the exception should have no application in situations wherein the subject at issue is so illusive and obscure as a personal transaction between two opposing parties.
This holding in no way alters the rules announced in Henschel v. Hawkeye-Security Ins. Co., 178 N.W.2d 409 (Iowa 1970). That was an action by an insured against his own company. It is not authority for burdening Haynes with the responsibility of going forward with the evidence on the question of compliance or cooperation as a condition precedent under the policy. It is only authority for binding Haynes by reason of any noncompliance or noncooperation that may appear when the evidence is produced in the proper form and manner.
II. There is another compelling reason for placing the burden of producing evidence on the question upon Dairyland rather than upon Haynes. This action was pleaded in such a way as to demand it. As has been indicated Haynes did not plead performance of the conditions precedent in the policy. Dairyland alleged nonperformance as an affirmative defense. This affirmative allegation was denied in Haynes's reply.
“Ordinarily the burden of proof follows the pleading; that is, he who pleads and relies upon the affirmative of an issue must carry the burden of proving it.” Rule 344(f) (5), Rules of Civil Procedure.
Opposing this fundamental principle we are cited a familiar holding that a burden is not “ordinarily” shifted by inadvertent surplusage in pleadings. See Barnes v. Gall, 251 Iowa 921, 924, 103 N.W.2d 710, 712. The situation presented in this appeal escapes the “ordinary” classification referred to. The inadvertent surplusage rule is subject to rule 344(f) (5) quoted above. Where applicable it is intended not as a trap but as a just means of escape from a trap. If applied to the situation at hand it would become a trap. Our situation is perhaps best described at 71 C.J.S. Pleading § 563, page 1129:
“Sometimes the failure of a complaint to allege a certain fact is held to be waived by an answer setting up that fact or alleging the opposite thereof. * * * ”
The answer of Dairyland in this case did more than merely deny. It actually alleged the opposite of the very thing Dairyland now insists Haynes should have alleged in the original petition and thereafter proved at trial. Dairyland waived any objection. See Hightower Oil & Refining Co. v. Castor, Tex.Civ.App., 177 S.W.2d 311; Denver & R. G. R. Co. v. Cahill, 8 Colo.App. 158, 45 P. 285. See also Benson v. Williams, 239 Iowa 742, 32 N.W.2d 813; Ver-linden v. Godberson, 238 Iowa 161, 25 N.W.2d 347.
It is required of a judgment creditor to stand in the position of his debtor in looking for coverage under a liability insurance policy. This requirement subjects such a creditor to any defenses which would be good against the insured debtor. It does not however place upon him the burden of going forth with evidence peculiarly within the possession of his opposing party. This is especially true where the opposing party has alleged these facts. The judgment of the trial court accordingly must be reversed.
III. We are left with the question of whether a new trial should be ordered upon remand. Dairyland rested before moving for the directed verdict and has not asked for a new trial. Where a motion for directed verdict is improperly sustained at the close of all evidence it is appropriate .for us to remand for entry of final judgment. Sidles Co. v. Pioneer Valley Sav. Bk., 233 Iowa 1057, 1064, 8 N.W.*872d 794, 798. However it is not required we do so. In Sidles we pointed out: “ * * * all material facts necessary to settle the rights of the parties were definitely established, and no good reason appears why the cause should be sent back for a retrial.”
The central factual issue remains unresolved in this case. It may be argued Dairyland waived its right to present these issues by resting without offering evidence and before moving for directed verdict. This strategy is perhaps not to be recommended. Because the legal questions presented were complex and uncertain we believe the interests of justice require a new trial. The case is remanded for retrial.
Reversed and remanded.
All Justices concur except UHLEN-HOPP, J., who concurs specially, MASON, J., who dissents, and McCORMICK, J., who takes no part.