2337. Certificate of nearest magis- 2365. Total loss-Minnesota rule. 2366. Total loss-Wisconsin rule. 2367. Loss not total.

2340. Time of giving notice-Ques- 2368. Life insurance-Nature

2341. Conditions requiring proofs of 2369. Contract of life insurance

2346. Proofs of loss-Correcting mis- 2375. Warranties and representa

2348. Proofs of loss-Time insuffi- 2376. Declarations and statements

2354. Waiver by estoppel-Limita- 2382. Insurable interest-Implied

2358. Waiver Insurer cannot 2385. Assignment to one having no change grounds of objections.

2359. Waiver of proofs of loss-Il- 2387. Proofs of death-Purpose and

2361. Defective proofs-Duty of in- 2389. Physician's certificate as evi

General.

§ 2292. Burden of proof-Plaintiff's Case.-Insurance policies contain so many conditions precedent to the right of recovery, and other conditions the breach of which constitute only a defense to the action, that the question of the burden of proof is both difficult and important. As a rule of pleading in an action on an insurance policy it is sufficient to allege generally the due performance of all the conditions on the part of the plaintiff. The burden of proof is upon the plaintiff to prove only those conditions precedent upon which the assured is prima facie entitled to recover in case of loss, and the necessary steps provided by the policy to establish his right to recover. The rule more accurately and fully stated is as follows: "An unexpired policy of fire insurance, which has been regularly issued, and remains uncancelled, must, in the absence of a showing to the contrary, be regarded as a valid and effective policy, upon which the assured is prima facie entitled to recover when the loss occurs, and the steps necessary to establish it have been taken; and hence, the conditions precedent in such a policy include only those affirmative acts on the part of the assured, the performance of which is necessary in order to perfect his right of action on the policy, such as giving notice and making proof of the loss, furnishing the certificate of a magistrate when required by the terms of the policy, and, it may be, in some cases, other steps of a like nature. Thus, clauses usually contained in policies of insurance which provide that the policy shall become void, or its operation defeated or suspended, or the insurer relieved wholly or partially from liability, upon the happening of some event, or the doing or omission to do some act, are not in any proper sense conditions precedent.” The burden is upon the plaintiff to show that the policy was in force on the day of the loss.2

§ 2293. Defense-Burden of proof.-The burden of proof has been held to be on the defendant to show that the plaintiff is not the owner of the policy, or is not the person named therein as the bene ficiary. And when a policy of insurance is issued with the indorsement thereon that the loss should be paid to a certain named person, it

3

1 Moody v. Amazon Ins. Co., 52 Ohio St. 12, 38 N. E. 1011; Phillips v. Insurance Co., 13 Ohio C. C. 679; Phenix Ins. Co. v. Stock, 149 Ill. 319, 36 N. E. 408.

2 Schroeder v. Trade Ins. Co., 12 Ill. App. 651.

3 Hartford L. &c. Ins. Co. v. Wayland, (Ky.) 20 S. W. 199.

was held that this was an admission by the company that the person named had an interest in the contract and was to receive the benefit of it. If the defense relied upon is either fraudulent representation or breach of conditions of warranty, these are matters of affirmative defense and must be pleaded as such; and the party relying upon such defenses must prove them. The burden of proving a breach of any

representation or fraud relied upon as a defense or an avoidance of the policy is upon the defendant." Where the defense is based on an alienation of the property as a breach of the conditions of a policy, the burden of proof on this point is upon the defendant. Where the defendant pleads fraud or a false and fraudulent claim made by the plaintiff, the burden is upon him to prove: (1) that there was a false statement in the proof of loss as to the value of the goods destroyed; (2) that such false statement was made with knowledge of its falsity, and with the intent to defraud the company by deceiving them as to the value of the goods. And where the defendant alleges that the loss was caused or procured by the plaintiff the burden is upon him to prove the allegation with reasonable certainty. Where the defense is that the action was not brought within the stipulated time, this fact must be specially pleaded, and the burden is upon the defendant to prove the allegation."

§ 2294. Premium-Amount not fixed.-The contract of insurance, like other agreements, must be definite and certain. But it is not always necessary that the exact amount of the premium shall be expressly stated or agreed upon. This, like other business transactions, may be established by usage and custom known to the parties. And where the proof showed that the rate of insurance was not agreed upon but that the insured was familiar with the rates and had carried large amounts of insurance and had made frequent payments of premiums, it was held sufficiently definite.10 In some kinds of risks the exact

184; Butternut &c. Co. v. Manufacturers' &c. Ins. Co., 78 Wis. 202, 47 N. W. 366; Northwestern &c. Ins. Co. v. Gridley, 100 U. S. 614; Manhattan &c. Ins. Co. v. Willis, 60 Fed. 236; Fidelity &c. Co. v. Alpert, 67 Fed. 460; Penn &c. Ins. Co. v. Mechanics' &c. Co., 72 Fed. 413, 38 L. R. A. 33, note.

0 Kingsley v. New England Ins. Co., 8 Cush. (Mass.) 393; Daniels v. Hudson River Ins. Co., 12 Cush. (Mass.) 413; Orrell v. Hampden Ins. Co., 13 Gray (Mass.) 431; Hudson v. Guardian &c. Ins. Co., 97 Mass. 144, 93 Am. Dec. 73; Gray v. Standard &c. Ins. Co., 170 Mass.

558, 49 N. E. 921; Denver &c. Ins. Co. v. Crane, (Colo. App.) 73 Pac. 875; Ley v. Metropolitan &c. Ins. Co., 120 Iowa 203, 94 N. W. 568 North American &c. Ins. Co. V. Sickles, 23 Ohio C. C. 594; Price v. Standard &c. Ins. Co., 90 Minn. 264, 95 N. W. 1118.

'Orrell v. Hampden Fire Ins. Co., 13 Gray (Mass.) 431.

s Mack v. Lancashire Ins. Co., 4 Fed. 59.