Caminetti v. Prudence Mutual Life Insurance

SHAW, J. pro tem. Appellant, as Insurance Commissioner of the State of California, obtained from the Superior Court of Sacramento County an order under section 1011 of the Insurance Code appointing him as conservator of the business of the respondent, Prudence Mutual Life Insurance Association, and pursuant to this order took over its property and business. The respondent is a corporation organized to do life insurance business on the mutual benefit assessment plan. As soon as this order was made, the proceeding was transferred to Los Angeles County. Later, on application of respondent, a hearing was had under section 1012 of the Insurance Code, at the conclusion of which the Superior Court of Los Angeles County entered a judgment cancelling and terminating the former order, dissolving the conservatorship and directing the restoration to respondent of its property and business. From this judgment the Insurance Commissioner appeals.

At the outset of the hearing the trial court was asked to rule upon the question where lay the burden of proof, and after extended argument it announced its opinion that the burden rested on the Insurance Commissioner. Appellant now complains of this as reversible error. The court’s declaration of law was erroneous, for it is now settled that on [948]application by an insurance company under section 1012 of the Insurance Code for the setting aside of an order made under section 1011 of that code, the burden of proof is on the company making the application. (Caminetti v. Guaranty Union L. Ins. Co. (1942), 52 Cal.App.2d 330, 337 [126 P.2d 159]; Caminetti v. Imperial Mut. L. Ins. Co. (1943), 59 Cal.App.2d 476, 487 [139 P.2d 681].) But this error does not in itself afford ground for a reversal, under the circumstances of this case. As a result of this declaration of the trial court the commissioner’s evidence was produced first, but it does not appear that either party was prevented by it from producing all available evidence, or desired to or could obtain or present anything further. The hearing appears to have been a “full hearing,” as required by section 1012 of the Insurance Code. After the taking of evidence, and just before the entry of judgment, the trial court made an order vacating the submission of the case and reopening it for the purpose of making and did make a further order vacating its ruling on the burden of proof and declaring that it had heard, considered and weighed all of the evidence of both parties and that “regardless of where the burden of proof lay, the decision of this court would not be affected.” This order was made seven days after the filing of the first of the decisions on burden of proof above cited and we are informed by the briefs that it was made by reason of that decision. However that may be, it shows that the court vacated its ruling on the burden of proof. We must therefore presume, nothing now appearing to the contrary, that the court weighed and considered the evidence in the light of the proper rule as to the burden of proof, The only remaining effect of its former ruling is that the appellant was required to proceed first with the production of evidence. But an error in that respect does not ordinarily result in a miscarriage of justice, where all the evidence of both parties is fully presented, and we think it did not here.