This is a case based entirely on uncontradicted, circumstantial evidence. The burden of proof was on the defendant to show that the right to institute an action was not in the plaintiff when the suit was filed, or in other words, to show that the insurance company had accepted the assignment of the cause of action. This I think the defendant failed to do. The proof of loss was not dated. The assignment of the cause of action appears on the back of the sheet of paper which contains the proof of loss, and the assignment is dated November 1, 1941. The proof of loss provides: "It is expressly understood and agreed that the furnishing of this `Proof of Loss' blank to the assured, or assistance in making up of proof by an adjuster or any person otherwise an agent of the General America Companies, is an act of courtesy, and is not a waiver of any of the rights of said General Insurance Company of America, and further that this `Proof of Loss' blank, when delivered to an agent, adjuster, or other person representing the General Insurance Company of America, is accepted by the said person only for transfer to the Home Office of the General America Companies, Seattle, for its approval." The draft in payment of the claim is dated November 3, 1941. The receipt given for the draft is not dated. This receipt contains the loan agreement and the agreement of the insured to prosecute the claim in her own name. I think that this court should approach the solution of the question involved by assuming that there were two actions filed at the same time, one in the name of the insurance company and one in the name of the insured, or owner of the automobile, and that the question as to *Page 690 which suit was authorized is before us on the evidence above shown. The evidence is circumstantial. Both actions are not maintainable. What does logic and reason dictate with reference to the intention of the parties? The proof of loss had to go to Seattle. Washington, for approval. Therefore no agent could accept the assignment based on the proof of loss on November 3, before the blank could reach Seattle. I think that the correct and logical inference is that the proof-of-loss blank was not sent to Seattle, or that while it was on its way the money was paid to the insured. It is a fair inference, and the most logical one, that the receipt for the payment of the loss was given at the same time the payment was made. I think it, therefore, inescapable that the parties intended to ignore the assignment and to act under the loan agreement, for which there was a present consideration. The assignment was a mere proposal by the insured to the company. The loan agreement executed before the assignment could reach the home office is to my mind conclusive that the assignment was not accepted. The two papers are utterly inconsistent. I think that the trial court's error lies in the fact that it assumed that the assignment had been accepted and become binding before the loan agreement was executed. If that fact had been true, I would agree with the trial judge. I think that the owner of the automobile had the right, under the facts, to sue in her own name, and that an action by the insurance company in its name would have had to be dismissed.