Id. The New Hampshire cases involving motor vehicle policies approved with exclusions that were not approved include Continental Cas. Co. v. Buxton, 88 N.H. 447 (1937); American Employers Ins. Co. v. Worden, 92 N.H. 249 (1942) and Raymond v. Great American Indemnity Co., 86 N.H. 93 (1933). A close reading of these cases makes it clear that the unapproved policies and/or exclusions were null and void because only approved policies and exclusions could exclude coverage otherwise statutorily mandated.

The exclusion was effective, even though the endorsement adopted the provisions of an act defining a wider coverage, since the authority given to the Insurance Commissioner to approve policy forms included approval of "the limits of liability." Raymond v. Company, 86 N.H. 93; Continental c. Company v. Buxton, 88 N.H. 447. The defendants contend that the act of 1937, under which the present case arises, is to be interpreted differently from that of 1927, which it repealed.

See also Faris v. Travelers Indemnity Co. 278 Mass. 204, 208; Bloom v. Ohio Farmers Ins. Co. 255 Mass. 528. In Souza v. Car General Assurance Corp. Ltd. 281 Mass. 117, the plaintiff neither argued nor filed a brief, and the facts are not fully stated in the opinion; but in fact in that case, and in the very similar case of Raymond v. Great American Indemnity Co. 86 N.H. 93, arising under a policy much like that in the case at bar, a use of an automobile for the carrying of passengers for a consideration on a number of occasions, falling short, however, of a regular business, was held to bar indemnity for a liability incurred while the automobile was being so used. We think that whenever there is a contract, based on valuable consideration, having as its main purpose the carrying of passengers, the insurer under the form of policy in this case does not undertake to indemnify the owner or operator against liability for an occurrence during the journey covered by the contract.

Prior thereto the law was well established in this jurisdiction that in such a proceeding the burden of establishing coverage rested on the insured. Raymond v. Indemnity Co., 86 N.H. 93, 163 A. 713 (1932); Hardware Mut. Cas. Co. v. Hopkins, 106 N.H. 412, 213 A.2d 692 (1965). The fire involved took place October 27, 1962.

In Levy v. Woodcock, 63 N.H. 413, it was shown that the claimant had obtained the property by fraud, and in Davis v. Fogg, 58 N.H. 159, it appeared the claimant had no title. The remaining two cases do not fall under the statute, and merely state the familiar rule of equitable pleading that where the defendant makes affirmative allegations in objection to, or in avoidance of the plaintiff's demand he must produce some evidence to sustain his position. It is fundamental law in this state that though the duty of going forward may shift, the burden of proof remains on the plaintiff. Cohn v. Saidel, 71 N.H. 558, 570, and cases cited; Caswell v. Maplewood Garage, 84 N.H. 241, 255; Raymond v. Indemnity Company, 86 N.H. 93, 98, and cases cited. Here too, the plaintiff chose to open and close the case and we find no error in the Court's ruling that the burden was on him.

The plaintiff assumed the burden of proving that the decedent's death was caused by a non-occupational accident or, in other words, by an accident which did not arise out of and in the course of his employment within the meaning of that phrase as used in the policies. Raymond v. Company, 86 N.H. 93; Trepanier v. Insurance Co., 88 N.H. 118, 121. The phrase is common to many workmen's compensation statutes including our own act (R. L., c. 216).

The pertinent inquiry is whether or not the policy affords the insured protection, and that depends on whether or not he was carrying Brenner or Silverberg in his car for a consideration. It was incumbent on him to prove that he received no consideration for so carrying either of them. Raymond v. Indemnity Co., 86 N.H. 93, 95. The plaintiff, invoking the rule of Hebert v. Railroad, 90 N.H. 324, contends that the testimony of the defendants taken as a whole "was such a mass of contradiction, confusion and equivocation that no reasonable person could believe that no consideration was paid for this journey."

The understanding of the parties at the trial was not that the burden of the risk of non-persuasion shifted (Hartford c. Company v. Lougee, 89 N.H. 222, 223), but that it did not matter who opened and closed. The evidentiary rule is not lightly to be invaded. Raymond v. Company, 86 N.H. 93, 96. Since the ruling as to the burden of proof was erroneous, the defendants were met at every stage of the trial with the necessity of proving by the balance of the probabilities that Auger and Daneault were not carried for a consideration.

It was held under the 1927 act (Laws 1927, c. 54) that a motor vehicle liability policy might be approved by the Commissioner if it excluded from the coverage "special uses calling for special rates." Raymond v. Company, 86 N.H. 93, 101; Continental Casualty Co. v. Buxton, 88 N.H. 447. In the former case an exclusion of coverage for passengers for hire was held permissible.

This conclusion does not conflict with the previous decisions of this court regarding the authority of the Insurance Commissioner. In Raymond v. Casualty Co., 86 N.H. 93, it was held that the commissioner might approve a policy which excepted "special uses calling for special rates" (carrying passengers for hire). In Continental Casualty Co. v. Buxton, 88 N.H. 447, it was held that a provision which excluded a special class of persons from the coverage was a valid limit of liability, (the passenger-guests of renters of the named assured's automobiles).