Borger

This is an appeal from a judgment and order denying the defendant’s motion for a new trial.

This cause was before the court upon a former appeal ( 24 Cal. App. 696 , [ 142 Pac. 115 ]), wherein the facts of the ease in so far as required for the consideration of that appeal and of the present one are fully set forth. Upon the former appeal the judgment and order were reversed upon the ground that according to the terms of the insurance policy in question relating to the time when the loss should become payable, the action had been prematurely brought. Upon such re versal the plaintiff filed an amended complaint, wherein it was set forth that the defendant, upon the filing with it by the plaintiff of his proofs of loss, had denied liability upon its policy for such loss. Upon the second trial on the added issue thus presented the plaintiff again recovered judgment, upon which and upon the denial of his motion for a new trial the defendant has again appealed.

The present case presents practically the same question that was presented and decided upon the prior appeal. The respondent contends, however, that the effect of the defendant’s denial of liability upon its policy for the…