
    No. 28,470.
    C. E. Beymer, Appellee, v. The St. Paul Fire and Marine Insurance Company, Appellant.
    
    (276 Pac. 833.)
    Opinion filed May 4, 1929.
    
      C. A. Matson, I. H. Stearns, E. P. Villepigue, all of Wichita, and Lester Luther, of Cimarron, for the appellant.
    
      C. E. Beymer, E. R. Thorpe, both of Lakin, C. E. Vance and A. M. Fleming, both of Garden City, for the appellee.
   The opinion of the court was delivered by

Burch, J.:

The action was one to recover on a hail insurance policy covering a growing crop. The verdict and judgment were for plaintiff, and defendant appeals. The assignments of error-which are stressed are that the court erred in its ruling respecting-admission of evidence, that the evidence was insufficient to establish the making of proof of loss, and that a new trial was denied.

The petition pleaded the policy, the loss, notice of loss, proof of' loss, and nonpayment by the company. The answer was a general; denial. The policy contained a provision that the company should' not be liable for damage by hail if the crop were otherwise injured, to such an extent it was not worth harvesting. In the opening statement to the jury defendant said it had two defenses: First, that the crop dried up, and without the hailstorm would not have paid' harvesting expenses; and second, that plaintiff suffered no hail loss if there was a crop to be injured.

On cross-examination of plaintiff, defendant asked a question, leading up to the first defense stated to the jury. Objection was made on the ground the defense ‘was not pleaded. The objection was good, but the court sustained it on another ground. The court held the provision of the policy on which the defense was based', was void. Conceding, but not deciding, the reason which the court, gave for its ruling was unsound, the ruling was correct.

When defendant reached its side of the case, it made an offer of' evidence to sustain the first defense stated to the jury. Objection, was made that the evidence was not pertinent to any issue made by-the pleadings, and the objection was sustained. It is not now material whether the objection was properly sustained. The offered evidence was not produced at the hearing on the motion for new trial. Defendant’s attorney-made an affidavit stating what the-testimony of his witnesses would have been, but that did not satisfy - the requirements of the statute. (R. S. 60-3004.)

Plaintiff testified positively he sent proofs of loss as required by-the policy. Afterward he said his opinion was he sent proofs of loss. When pressed to answer whether he knew he sent proofs of' loss, he said: “Well, my recollection is that I did; I hate to say-positively.” The evidence was sufficient prima jade to show proof' of loss was furnished, and defendant closed its case without offering any evidence that proof of loss had not been received.

The motion for new trial was properly denied, and the judgment, of the district court is affirmed.  