
    [No. 14810.
    Department Two.
    January 6, 1919.]
    R. M. Ramat et al., Respondents, v. California Insurance Company, Appellant.
      
    
    Aureal (473) — Review—Former Decision as Law oe Case. A decision on appeal that the evidence made a question for the jury becomes the law of the ease on a retrial, where the evidence was substantially the same as on the former trial.
    Appeal from a judgment of the superior court for King county, Tallman, J., entered January 2, 1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a fire insurance policy.
    Affirmed.
    
      H. T. Granger, for appellant.
    
      Cole & Dolby, for respondents.
    
      
      Reported in 177 Pac. 638.
    
   Parker, J.

The plaintiffs, Eamat and wife, seek recovery from the defendant insurance company upon a fire insurance policy covering their household furniture. Trial in the superior court for King county sitting with a jury resulted in verdict and judgment in favor of the plaintiffs for the sum of $500, the full amount for which the policy was issued. The defendant has appealed to this court.

A judgment was rendered upon a verdict in respondent’s favor in the superior court upon a former trial therein, which was reversed upon appeal to this court (Ramat v. California Ins. Co., 95 Wash. 571, 164 Pac. 219), and the cause remanded for a new trial. It was contended in appellant’s behalf on the former appeal that the trial court erred in refusing to sustain its motion challenging the sufficiency of the evidence to support any recovery by respondents and asking that the cause be so determined in its favor as a matter of law. The challenge so made upon that trial was overruled by the trial court and the cause was submitted to the jury on the single question of the amount of the loss; the trial court ruling, as a matter of law, that there had been a waiver of the provisions of the policy making it void if the insured then had, or should thereafter acquire, other insurance on the property, and the condition that the insured should, within sixty days after a fire destroying the property, render to the company a sworn statement of their loss. "While this court held that the trial court correctly overruled appellant’s challenge to the evidence and motion for judgment, it was because of the determination by the trial court of the two questions of waiver in respondent’s favor, as a matter of law, that a new trial was awarded to appellants. The evidence given upon the trial touching the question of waiver on the part of appellants in these two particulars was, in substance, the same upon the second as upon the first trial; and upon that evidence the questions of waiver were submitted to the jury upon the second trial and decided in respondents’ favor.

That our former decision has become the law of the case, holding, in effect, that the evidence was such as to call for the decision of the jury upon these questions of waiver, we think is plain, in view of the fact that the evidence upon the second trial was in substance the same as upon the first trial. Reversal of this judgment is sought upon the theory that the trial court erred in submitting to the jury these two questions of waiver. What was said in our former decision remanding the cause for new trial, we think, disposes of the contentions made in that behalf. The view of the law there expressed has since then been adhered to by us, referring specifically to that decision, in the following eases: Workman v. Royal Exchange Assurance, 96 Wash. 559, 165 Pac. 488; Boskovich v. Union Assurance Society, 98 Wash. 579, 168 Pac. 166; Gregerson v. Phenix Fire Ins. Co., 99 Wash. 639, 170 Pac. 331; Robbins v. Milwaukee Mechanics Ins. Co., 102 Wash. 539, 173 Pac. 634.

The judgment is affirmed.

Main, C. J., Mount, Holcomb, and Fullerton, JJ., concur.  