(dissenting).
I dissent.
In his opening statement to the court counsel for Mr. Morris summed up the matter correctly when he said:
. . . And they [plaintiff and an employee of the defendant] went through the basement and speculating as to where this water came from. I say speculating advisingly [sic], because to this date there is no definite proof as to how this water got in the basement. It is one of those odd things that just could not definitely be established. . . .
******
. As I have given Your Honor the evidence that is here, it is speculation from the word go in all directions whether it came from inside or outside. . . .
The trial judge likewise could not determine how the water got into the house. He stated:
But what I think I am saying here, Mr. Clegg, is I think that under the facts and circumstances here that the plaintiff has probably met his burden of proof of showing that this water damage occurred after your policy came into existence. And that since water damage to the house under certain circumstances would be covered by the policy, it then *211becomes the burden of the insurance company to show that the damage resulted from a source that excluded liability of the insurance company for the damage, and I don’t think you have done that. I don’t know that you could. . . .
It thus is clear that no one, including the judge, knew how the damage occurred. The judge then misapplied the law when he assumed that defendant was obligated to show that the cause of the damage was something other than those covered by the policy.
The law is to the contrary. The burden was upon the plaintiff not only to show damage, but also to show that it was caused by some agency which the policy covered. The law is stated in 21 Insurance Law and Practice (Appleman) in section 12141 at page 74 to be:
In an action on an accident policy, the burden is on the beneficiary to show by evidence that the insurer is liable upon its policy. Likewise, the insured has the burden of showing that his injury was covered by the terms of the policy. But the facts need be proven only by a preponderance of the evidence.
To the same effect Couch on Insurance 2d states the law to be:
The insured has the burden of proving that the loss sustained was such as comes within the coverage of the policy. [Sec. 79:344]
In signing findings undoubtedly drawn by counsel for the plaintiff the court said:
. . . The court finds from a preponderance of the evidence that the water entered the basement due to accidental discharge of water from a plumbing fixture located within the basement.
There is no evidence to support this finding.
The plaintiff called an expert witness and when asked for his opinion as to where the water came from replied:
THE WITNESS : I am afraid I would have to speculate if I were to give an opinion. I have already indicated that it could be from a pressure situation or water coming up on a cold joint crack that could have come through.
THE COURT: We never quite view an expert as speculating when he gives his opinion; but if his opinion is based on speculation and not on facts, then I guess it is not a valid opinion. But in your opinion, do you think that that water could have come up through the joints?
THE WITNESS: There is where the water was. It was my opinion that is where it would have to come from.
THE COURT: What would be its source, do you think?
THE WITNESS: The source would have to be outside water or it could be *212from a broken pipe. I have inspected homes in this situation, but I couldn’t hear any broken — I couldn’t hear the noise of a broke pipe and I couldn’t find any broken pipe. So that barred that situation.
The defendant also called an expert witness who testified:
Q Based upon your examination of the home and knowing what you do about construction of houses, did you have an opinion as to whether the water on the inside of the house had entered from the outside of the house?
A I figured it very definitely had to come from the outside of the house.
Other witnesses testified that there were no broken pipes anywhere and that there was no evidence that the water came from upstairs.
Down in the basement there was a shower with a drain sufficient to carry off the water from it and a tile to keep the water inside. There was no evidence of a stoppage in the drain and no water in the shower portion. There was also a toilet but there was no evidence of stoppage or overflow therefrom. There was a water basin but no water in it. The basin had an overflow outlet.
If the water came from inside the basement it had to come from an open faucet and all faucets were closed when the damage was discovered. There is not one bit of evidence of any discharge of water in the basement.
I would reverse the judgment and award costs to the appellant.
HENRIOD, J., .concurs in the opinion of ELLETT, J.