Moodey

This is an appeal by defendant from an order denying its motion for a new trial. The policy was formally the same as those considered in Fountain v. Connecticut Fire Insurance Co., 158 Cal. 760 , [ 139 Am. St. Rep. 214 , 112 Pac. 546 ], and Davis v. Connecticut Fire Insurance Co., 158 Cal. 766 , [ 112 Pac. 549 ]. As in those cases the defendant depended upon the “fallen building” clause in the policy, the entire defense being based upon the allegation and proof that a material portion of the building in which plaintiff’s store was located had fallen as a result of earthquake before the fire attacked plaintiff’s goods. There was no attempt made in this case as in Davis v. Connecticut Fire Ins. Co., 158 Cal. 766 , [ 112 Pac. 549 ], to prove that the fire was in progress before any material portion of the building was shaken down. The uncontradicted testimony was that the fire did not reach the store owned by Moodey until long after the earthquake. This case is entirely analogous to the Fountain case. The evidence showed without any important contradiction that a material portion of the building had fallen before the fire occurred. That a substantial portion of the structure was…