Security Insurance Group v. Parker , 24 N.C. App. 452 ( 1975 )

BROCK, Chief Judge.

Defendant concedes the existence of its “Family Automobile Policy” issued to Floyd E. Parker, husband of Lucille Croom Parker, and concedes that the policy covered Lucille Croom Parker while operating a non-owned automobile. However, defendant asserts that it is not liable because the operation of the non-owned automobile (the 1961 International truck), at the time of the accident giving rise to the judgment for $20,000.00 damages, falls within the policy exclusion which specifically excluded coverage of a non-owned automobile operated by the insured or spouse in any business or occupation.

When the insurer asserts non-liability under an exception or exclusion in the policy, once a prima facie case of liability under the policy is established, the burden of proof is upon the insurer to establish that the loss falls within the exception or exclusion asserted. Polansky v. Insurance Asso., 238 N.C. 427, 78 S.E. 2d 213; Williams v. Insurance Co., 2 N.C. App. 520, 163 S.E. 2d 400; 12 Couch on Insurance 2d §§ 44:414, 44:421 (1964) ; 19 Couch on Insurance 2d § 75:383 (1968). Therefore, defendant in this case assumed the burden of proving that the (non-owned) 1961 International truck, at the time of the accident, was being operated by Lucille Croom Parker in a business or occupation.

It appears that defendant concedes that plaintiff established, prima facie, defendant’s liability under the policy.

In seeking to carry its burden of proving that Lucille Croom Parker was operating the (non-owned) 1961 International truck in a business or occupation, defendant offered the testimony of Lucille Croom Parker. We have read the narration of her testimony carefully and with interest. Whether we would find the facts differently from those found by the trial judge is not the question. The trial judge had the opportunity to listen to and view the witness. These opportunites, like those afforded a jury, are essential to a determination of the weight and credit to be given to the testimony. A reviewing court has only the cold record. Here the defendant had the burden to satisfy the trial judge by the greater weight of the evidence that the loss came within the policy exclusion. This it failed to do, and the trial judge found in favor of coverage. If, upon this same evidence, a jury under correct instructions, had answered the issue as did the trial judge, should the verdict be upset? We think not.

In view of this disposition, the remainder of defendant’s argument requires no discussion.

Affirmed.

Judges Morris and Arnold concur.