dissenting.
I am unable to agree with, the holding of the majority that, because the plaintiff insurance company brought this declaratory judgment action, the burden of proof as to all issues rests upon the plaintiffs. The only issue here presented is whether the driver of the automobile at the time the accident occurred, and numerous claims arose, was driving the automobile with the permission of the named insured. If he was driving with permission, he was an insured. If he was not driving the vehicle with permission, he was not covered by the policy.
It is an established rule of law that one who claims that he is the person entitled to coverage under the terms of a contract of insurance has the burden of establishing that fact. Jarvis et ux. v. Indemnity Ins. Co., 227 Or 508, 363 P2d 740; LaBarge v. United Ins. Co., 209 Or 282, 303 P2d 498, 306 P2d 380; Hutchison v. Aetna Life Insurance Co., 182 Or 639, 189 P2d 586; Western W. Co. v. New Amsterdam C. Co., 85 Or 597, 167 P 572.
Why this rule of law should be applied differently in a declaratory judgment action from its application in a law suit between the same parties, I am unable to understand.
The majority give no reason for this change except to state that it is a general rule that the moving party must bear the burden of proving the elements of his claim. The difficulty with this statement is that a party to invoke the jurisdiction of a court in a declaratory proceeding must allege that a justiciable controversy between the parties exists and in order to establish such jurisdiction must prove that a justiciable issue exists. Therefore, to that extent the general rule,—that a moving party has the burden of proof,— *362is correct. Yet when this issue is passed, as in many other cases, the burden of proof may shift, depending upon the issues to be determined.
For instance, in a quiet title action, which is much in the nature of a declaratory action, the burden is upon the plaintiff to establish color of title in himself, but, when this point is passed, the burden of proof rests upon the defendant to establish his lien upon the premises, Clark v. City of Salem, 61 Or 116, 121 P 416, or to defeat plaintiff’s title by proving a better title to the property in himself. Burnett et al. v. Hatch, 200 Or 291, 295, 266 P2d 414; Durkin v. Ward, 66 Or 385, 133 P 345.
Also, in the instance where a party claims that the driver of the automobile in which he was riding owed him the duty of using ordinary care, a general denial puts in issue the question of whether or not the plaintiff was a guest. Senechal v. Bauman, 232 Or 217, 375 P2d 60. Or “[i]n action for trespass, defendant may prove, under general denial, title in himself, no matter how acquired, whether by deed, inheritance, or adverse possession.” (syl.) Denham et ux v. Cuddeback, 210 Or 485, 311 P2d 1014.
It is thus apparent that the issues as to burden of proof are not always established by the pleadings, but the burden of proof is cast upon the party who without any evidence upon an issue necessary to his success would fail, or as stated in OES 41.210, “* * * the burden of proof lies on the party who would be defeated if no evidence were given on either side.” Therefore, when dealing with the question of burden of proof, the use of the words “moving party”, in the sense of the person commencing the proceeding, is often, as in this case, a misleading statement.
In this case, if no evidence was introduced, the *363plaintiffs, as the moving parties, would fail in their attempt to have the issues presented decided; that is, the declaratory judgment action would fail for this is an issue of law which the court must make on the facts. But the “moving party” theory should go no further for ORS 28.090, dealing with declaratory judgments, states that issues of fact “* * * may be tried * * * in the same manner as issues of fact are tried * * * in other actions at law or suits in equity,” and ORS 17.250 provides that the court shall instruct the jury “[t]hat in civil cases the affirmative of the issue shall be proved * *
As previously pointed out, one claiming coverage under an insurance contract has the burden of establishing affirmatively facts which bring him within the terms of the policy.
The majority apparently rely heavily upon 2 Anderson, Declaratory Judgments, (2nd ed, 1951). Airderson’s reasons for changing the burden of proof, it will be noted, apply only to insurance companies, and he states his reason as follows:
“It is a matter of common knowledge that the insurance companies in these cases, which are viewed so charitably by the learned court in that state [New Hampshire], are far more financially able to obtain the proof necessary to establish its affirmative allegations, though negative in form, than the insured or injured parties. Aside from that—and we fully recognize that poverty or affluence is no reason to change rules of law—the pronunciations of the learned court in that jurisdiction, it is submitted, are utterly devoid of all reason and surely find no grounds in precedent.” 2 Anderson, Declaratory Judgments 893, § 375.
It will be noticed, Anderson’s only reason is financial ability; the balance of his statement is but his personal *364opinion, which has not only not been subsequently approved by the courts, but has been repudiated. Even Anderson in his 1959 supplement discloses this fact, for at page 322 he states:
“In an action by an insurance company for a declaratory judgment as to its liability under the policy, burden of proof was not automatically upon the insurance company, even though it was the moving party, but on the persons who without evidence would be compelled to submit to an adverse judgment for the introduction of any evidence.” Citing Preferred Accident Insurance Co. of New York v. Grasso, 186 F2d 987 (1951), 23 ALR2d 1234.
In the Grasso case, p. 991, the court points out that the suggestion that the burden of proof be upon the insurance company (62 Harvard Law Review 787, 836-838, 1949, cited by the majority) “may have reference only to the burden of going forward where it may well be appropriate. If it goes beyond this, however, we think it not persuasive against the other authorities cited.”
Following the leading authority on declaratory judgments, Borehard (2d ed) 404-409, 1941, the court in the Grasso case quotes as follows, p. 991:
“Thus, after first stating that ‘since as a rule the risk of non-persuasion is on the plaintiff, it is not surprising to find that the burden of proof in declaratory actions rests, in the vast majority of eases, on the moving party,’ Professor Borehard proceeds to point out that in cases such as the one we have here, ‘Inasmuch as the company’s claim of immunity is in reality negatively defensive, there seems no impropriety in leaving the burden of proof exactly where it would have been had suit been brought on the policy, namely, on the insured or injured person.’ And he concludes that the burden of proof in such case is not automatically on the *365plaintiff, but on him who ‘without evidence would be compelled to submit to an adverse judgment before the introduction of any evidence,’ or who asserts the affirmative of any issue, quoting Reliance Life Ins. Co. v. Burgess, 8 Cir., 112 F.2d 234, 237, 238, certiorari denied 311 U.S. 699, 61 S. Ct. 137, 85 L. Ed. 453. This statement of the rule has been adopted by other courts: Bauer v. Clark, 7 Cir., 161 F.2d 397, 400, certiorari denied 332 U.S. 839, 68 S. Ct. 210, 92 L.Ed. 411; Pacific Portland Cement Co. v. Food Machinery & Chemical Corp., 9 Cir., 178 F.2d 541, 546, 547.”
In approving the rule that was adopted in the Grasso case, the Supreme Court of Vermont made this cogent observation:
“We are aware of the fact that the rule of the Greenough case has been criticized by several text book writers and in some of the law reviews. The author of the Annotation appearing in 23 ALR[2d] 1243 et seq. has this to say on tMs subject: ‘Direct opposition to the rule of the Greenough case is more easily to be found in treatises and law reviews than it is in the decisions. Cases which do not follow the rule more commonly ignore it than discuss it. Cases directly opposing the rule appear to be confined to a small and peculiar group of federal decisions in the Eighth Circuit, the language of which affords some difficulties of interpretation.’ The Drumheller, Stoner and Reliance eases, supra, were from courts in that circrnt. This interesting question is fully discussed and treated, with numerous cases cited, in the above Annotation.
“The weight of authority as shown by the cases which clearly and specifically answer the question now before us supports the rule of the Greenough case. We approve generally the reasons given for the rule in that case and in others with similar holdings. We do not deem it necessary to point out the reasons which particularly appeal to us. It follows that the chancellor was in error in conclud*366ing that the burden of proof was on the plaintiff to show a violation of the policy -condition in question.” American Fidelity Co. v. Hotel Poultney, 118 Vt 136, 102 A2d 322, 324.
Missouri also approves the rule that the burden of proof is not changed simply because the action is one for a declaratory judgment. M.F.A. Mut. Ins. Co. v. Quinn, 259 SW2d 854 (Mo 1953).
“It has been stated in insurance cases as a general rule that the burden of proof in a declaratory judgment action rests where it would have rested had a different type of suit been brought. Accordingly, in insurance cases, the general rules dealing with the burden of proof in such cases have been applied.” 22 Am. Jur 2d 965, Declaratory Judgments § 98.
Since Anderson made his statement in 1951,1 have not been able to find a single court that has accepted his view.
This court has applied the ordinary rules as to the admissibility and the weight and sufficiency of evidence in declaratory judgment actions, Shepard et ux v. Purvine et al., 196 Or 348, 248 P2d 352, and I see no reasonable legal reason for changing the rule as to burden of proof, unless the reason is simply to discourage insurance companies from seeking declaratory judgments, as the majority decision will do, or because of financial ability. To me this nonjudicial reasoning is unthinkable.
In a case such as this, the insured and those claiming under him are in a far better position to produce evidence of the fact that the driver of the vehicle which caused the damage was driving with the insured’s permission than is an insurance company to prove the *367negative. The evidence of this fact was solely in the hands of the insured and the driver.
In my opinion the trial court’s instruction placing the burden of proof upon the insurance company was erroneous and prejudicial and I would reverse the cause for a new trial.