I concur in the judgment, but as to the proposition that the burden rests upon the insurer to prove that accruing premiums have not been paid, I think, an examination of the decided cases will show that it rests upon very slender authority, as it certainly is in conflict with a leading principle of the law of evidence. The two cases cited from the United States supreme court reports (Thompson v. Insurance Co., 104 U.S. 252, and NewYork *Page 87 Life Ins. Co. v. Statham, 93 U.S. 24) involved different questions. In the first case, the court, conceding that the payment of accruing premiums was a condition that might be waived, merely decided, on demurrer, that plaintiff's replication did not show a waiver. In the second, all that was decided was, that the existence of a state of war between the respective countries of insured and insurer does not prevent a forfeiture for non-payment of premiums; but does entitle the insured to recover the equitable value of his policy at the date when payment of accruing premiums is by the war rendered impossible. Of the cases cited in support of the statement quoted from Kerr on Insurance, Tobin v. Western Mutual Aid Society, 72 Iowa, 261, rests on the mere authority of Hodsdon v. Guardian Life Ins. Co.,97 Mass. 144,1 and that, without any discussion, simply citesGray v. Gardener, 17 Mass. 188; Kingsley v. New England MutualFire Ins. Co., 8 Cush. 393; Daniels v. Hudson River Fire Ins.Co., 12 Cush. 426,2 and Orrell v. Hampden Fire Ins. Co., 13 Gray, 431. Turning to these cases, we find in the first that where a party gave his promissory note conditioned to be void if a certain quantity of oil was brought into port between certain dates, the burden was held to be upon him to prove, in defense of an action on the note, that the oil had been brought in. InKingsley v. New England Mutual Fire Ins. Co., 8 Cush. 393, it was held that where a policy of fire insurance exempted the insurer from liability for fire caused by cotton-waste, the insurer sustained the burden of proving that the fire was caused by cotton-waste. In Orrell v. Hampden Fire Ins. Co., 13 Gray, 431, the defense in a fire-insurance case was alienation of the property by the insured. Held, that the insurer must prove it. No one would doubt the correctness of these decisions, which in every instance placed the burden of proof where it belongs, — i.e. with the party affirming the fact. The decision in Daniels v. Hudson River Fire Ins. Co., 12 Cush. 426,2 does come a little nearer the point. That was a fire-insurance case, in which the defense was misrepresentation of a material fact in the application for insurance, — the fact represented being that there was a force-pump of a certain character on the premises, and the decision that the insurer must prove that the representation was false. *Page 88
Other cases cited by Kerr are suits against mutual benefit societies, like our own case of Kumle v. Grand Lodge A.O.U.W.,110 Cal. 204. The contract in these cases is to pay the benefit on condition that the member is in good standing at the time of his death. The good standing evidenced by his certificate of membership can only be forfeited by failure or refusal after notice to pay an assessment duly levied, and the proof of these facts is rightly imposed upon the party affirming them. I have seen no sufficient reason anywhere advanced for holding in this case more than in other cases that the party affirming a fact upon which his right depends is exempted from proving it when put in issue.
1 93 Am. Dec. 73.
2 59 Am. Dec. 192.