                                  No, 12081

        I N THE SUPREME COURT O THE STATE O M N A A
                               F           F OTN

                                      1972



MAURICE R , STAGGERS and
HORTENSE JOHNSON,

                          P'J.aintif f s and Respondents,



UNITED STATES FIDELITY & GUARANTY COMPANY,

                          Defendant 'and Appellant.



Appeal from:   D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
               Honorable James D, Freebourn, Judge p r e s i d i n g .

Counsel of Record:

      For Appellant :

           John H. J a r d i n e argued, Whitehall, Montana,
           Chester L. Jones, V i r g i n i a C i t y , Montana,

      For Respondent:

           Morrow, Nash and Sedivy, Bozeman, Montana,
           Edward P. Sedivy argued, Bozeman, Montana.



                                               Submitted : February 18, 1972

                                                  Decided : MAY        10
Mr. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court.
           This i s an appeal by defendant, United S t a t e s F i d e l i t y and Guaranty
Company, from a judgment entered i n the d i s t r i c t court of Madison County in
favor of p l a i n t i f f s , Maurice R . Staggers and Hortense Johnson.                  Since the
entry of the judgment Maurice R. Staggers has died; his e s t a t e has been pro-
bated in the s t a t e of Idaho and c e r t i f i e d copy of the decree of d i s t r i b u t i o n
has been f i l e d i n this Court.         The decree d i s t r i b u t e s a l l i n t e r e s t of the
decedent in this cause of action t o the surviving spouse, Hortense Johnson.
           P l a i n t i f f s brought t h i s action against the defendant t o recover under
c e r t a i n f i r e insurance p o l i c i e s as a r e s u l t of damages which p l a i n t i f f s sus-
tained from a f i r e which occurred on October 11, 1963.                      The jury returned a
verdict f o r p l a i n t i f f s in the sum of $15,620.          Defendant's motion f o r a new
t r i a l was subsequently denied and t h i s appeal followed.
           The sequence of events leading u p t o this action can be summarized
in t h i s manner:
           P l a i n t i f f s , Maurice R. Staggers and Hortense Johnson were e l d e r l y
and lived i n the Madison Valley area f o r many years.                     In 1958 Mrs. Johnson
bought a Nashua t r a i l e r house and had i t moved t o what was known a s the
Stagger's Ranch, located some t h i r t y - f i v e miles south of Ennis, Montana.                         Dur-
ing the t r i a l , these lands were referred t o as the "Greenough Ranch".                         The
t i t l e t o the ranch was i n dispute, although the t r a n s c r i p t reveals Staggers
had occupied the land p r i o r t o World War I .              T h i s property consisted of t h r e e
cabins, in which Staggers had accumulated many possessions.
          On April 30, 1963, Staggers purchased a f i r e insurance policy from
Cloe Paugh, now deceased, but then an agent of defendant.                          She maintained her
agency a t Ennis.       This pol icy covered household f u r n i t u r e and personal property
contained in the three cabins.              The face amount of the policy was o r i g i n a l l y
$3,500, b u t a t Stagger's request an additional $1,000 was purchased on July 1 ,
1963.    On August 9 , 1963, another policy was issued t o Staggers, providing
coverage of $4,500 on the Nashua t r a i l e r house and $2,000 on i t s contents.                          The
premiums were paid on the policies and they were in f u l l force and e f f e c t
on October 11 , 1963.
           Mrs. Johnson had been employed a t various motels as a clerk and
manager f o r many years, and was employed a t the Kruse Motel in Idaho F a l l s ,
Idaho, during the year before and a f t e r the f i r e .              She would go t o the ranch
i n the f a l l , a f t e r the t o u r i s t season, and would s t a y there from time t o
time.
           The day before the f i r e Staggers and one Roy Thompson, who was stay-
ing a t a dude ranch known as Neely Ranch, had been a t the cabins and t r a i l e r .
The neighbors, Mr. and Mrs. Daryl Stroud, observed Staggers leaving the area
about 5:00 p.m. and neither of them saw any f i r e i n the area of the cabins o r
t r a i l e r house when Staggers l e f t .
           A t the t r i a l the p l a i n t i f f s ' case consisted of testimony by them
about the insurance policies, the items l o s t , t h e i r e f f o r t s in advising the
defendant of t h e i r losses, and the f a c t t h a t t h e i r claims had not been reim-
bursed by the defendant.            Part of the defendant's case consisted of attempt-
ing t o prove t h a t the contents of the cabins and t r a i l e r had been removed by
the p l a i n t i f f s prior t o the f i r e and were s t i l l in t h e i r possession.        However,
a t the t r i a l p l a i n t i f f s ' offered e x p l i c i t testimony by c e r t a i n witnesses
which c l e a r l y negated any allegations by defendant t h a t p l a i n t i f f s s t i l l held
possession t o items claimed t o have been l o s t i n the f i r e .
           The issues in t h i s matter are:

           (I)    Was the evidence s u f f i c i e n t t o support the verdict of the jury
as t o i t s finding t h a t proof of l o s s was tendered within s i x t y days a f t e r loss?

           (2)    Was there s u f f i c i e n t evidence t o support the verdict of t h e jury
based upon "substantial compliance" of the provisions of defendant's f i r e in-
surance policy?

           (3)    Was there s u f f i c i e n t evidence t o support t h e verdict of the jury,
based upon waiver?

           ( 4 ) Was the verdict and judgment contrary t o law?
                                               - 3 -
             (5)    Was t h e c o u r t i n e r r o r i n e x c l u d i n g proposed e x h i b i t " G " ?

             (6)    Was t h e c o u r t i n e r r o r i n g i v i n g o r r e f u s i n g c e r t a i n i n -

s tructions?

             In r e f e r e n c e t o t h e f i r s t i s s u e on appeal, t h e d i s t r i c t c o u r t
p r o p e r l y reviewed t h i s i s s u e on d e f e n d a n t ' s m o t i o n f o r new t r i a l , and by o v e r -

r u l i n g s a i d motion r u l e d t h e j u r y ' s v e r d i c t was supported by s u f f i c i e n t

evidence.

            T h i s Court has on s e v e r a l occasions reviewed t h e r u l e s on s u f f i c i e n c y

of evidence.          I n Campeau v . Lewis, 144 Mont. 543, 547, 398 P.2d 960 (1965), we

stated :

            "The Court has c o n s i s t e n t l y h e l d t h a t t h e evidence i s
            n o t i n s u f f i c i e n t i f i t i s s u b s t a n t i a l . Adami v . Murphy,
            118 Mont. 172, 164 P.2d 150. I n t h e Adami case, t h e
            c o u r t , q u o t i n g from Morton v . Mooney, 97 Mont. 1, 33
            P.2d 262, h e l d t h a t ' s u b s t a n t i a l evidence' c o u l d be
            d e f i n e d as such "'as w i l l convince reasonable men and
            on which such men may n o t reasonably d i f f e r as t o
            whether i t e s t a b l i s h e s t h e p l a i n t i f f ' s case, and, if a l l
            reasonable men must conclude t h a t t h e evidence does n o t
            e s t a b l i s h such case, t h e n i t i s n o t s u b s t a n t i a l evidence."'
            118 Mont. 172, a t page 179, 164 P.2d a t page 153. The
            evidence may be i n h e r e n t l y weak and s t i l l be deemed
             ' s u b s t a n t i a l , ' and one w i t n e s s may be s u f f i c i e n t t o
            e s t a b l i s h t h e preponderance o f a case. B a t c h o f f v.
            Craney, 119 Mont. 157, 161, 172 P.2d 308. Also, sub-
            s t a n t i a l evidence may c o n f l i c t w i t h o t h e r evidence
            presented. Win Del Ranches v. R o l f e and Wood, I n c . ,
            137 Mont. 44, 49, 350 P.2d 581. W t h i n k these cases e
            d e a l i n g w i t h s u b s t a n t i a l evidence c l e a r l y o u t l i n e t h e
            meaning o f ' i n s u f f i c i e n t evidence' i n t h e s t a t u t e . The
            j u r y i s delegated t h e t a s k o f f i n d i n g t h e f a c t s . T h e i r
            v e r d i c t i s based upon t h e i r f i n d i n g s . The t r i a l judge,
            however, has t h e d i s c r e t i o n t o p r e v e n t a m i s c a r r i a g e
            o f j u s t i c e by g r a n t i n g a new t r i a l i f t h e r e i s an i n -
            s u f f i c i e n c y o f evidence t o support t h e v e r d i c t . "

            S p e c i f i c a l l y , defendant contends t h a t i t s own method o f c a l c u l a t i o n

c l e a r l y shows t h e p r o o f o f l o s s was submitted on e i t h e r December 20 o r 21,

1963, t h e r e b y exceeding t h e s i x t y - d a y requirement f o r p r o o f o f l o s s .                 This

Court has r e p e a t e d l y i n d i c a t e d t h a t i t w i l l presume t h a t t h e j u r y , i n reach-

i n g i t s v e r d i c t , f o l l o w e d t h e i n s t r u c t i o n s t h a t were g i v e n t o i t by t h e t r i a l

judge.      Welsh v. Roehm, 125 Mont. 517, 241 P.2d 816 (1952).                                  The defendant

acknowledges t h e j u r y was f u l l y i n s t r u c t e d on t h e s i x t y - d a y requirement, and
t h a t i n t e r e s t could be assessed accordingly.                   Our examination o f t h e r e c o r d

r e v e a l s t h e r e was no s p e c i f i c f i n d i n g by i n t e r r o g a t o r y i n t h e v e r d i c t as t o

any s p e c i f i c d a t e as t o t h e submission o f p r o o f o f l o s s by p l a i n t i f f s .             The

v e r d i c t was f o r a t o t a l f i g u r e o f $15,620 and was n o t broken down as t o

p r i n c i p a l and i n t e r e s t .

             Secondly, we f i n d no m e r i t whatsoever i n defendant's argument t h a t

t h e r e was n o t s u f f i c i e n t evidence t o support t h e v e r d i c t o f t h e j u r y based

upon " s u b s t a n t i a l compliance" by p l a i n t i f f s w i t h t h e p r o v i s i o n s o f t h e f i r e

insurance p o l i c i e s .

             S u c c i n c t l y s t a t e d , t h e r u l e o f " s u b s t a n t i a l compliance" i s as

f o l lows :

             "Since a p r o v i s i o n i n a f i r e insurance p o l i c y r e q u i r i n g
             t h e f i l i n g o f p r o o f s o f l o s s i s t o be l i b e r a l l y construed,
             t h e r e need be o n l y a s u b s t a n t i a l , reasonabl e compl iance
             w i t h such a p r o v i s i o n and a s t r i c t l y l i t e r a l compliance
             i s n o t necessary." Couch on Insurance 2d, § 49:498, a t
             Page 76-77.

             Montana has a p p l i e d t h e d o c t r i n e o f " s u b s t a n t i a l compliance" f o r a

considerable p e r i o d o f time.              Da Rin v. Casualty Company o f America, 41 Mont.

175, 108 P. 649.              W f e e l t h e d o c t r i n e o f s u b s t a n t i a l compliance i s a p p l i c a b l e
                               e

t o t h e r e s o l u t i o n o f t h i s case, and our examination o f a l l t h e testimony i n -

d i c a t e s i n d i s p u t a b l e evidence o f s u b s t a n t i a l compliance by p l a i n t i f f s i n f u r -

n i s h i n g defendant w i t h a p r o o f o f l o s s .

             On t h e morning o f t h e day a f t e r t h e f i r e Staggers heard rumors o f a

p o s s i b l e f i r e a t t h e t r a i l e r house and cabins.           He immediately drove over t o

t h e f i r e scene and found t h a t e v e r y t h i n g was burned t o t h e ground.                      Staggers

had been s t a y i n g a t t h e Neely ranch r e c o v e r i n g from h e a l t h problems.                     He then

immediately c a l l e d t h e agent Cloe Paugh who o r i g i n a l l y s o l d him t h e p o l i c i e s .

The n e x t day a M r . D i v e l , who was an insurance a d j u s t e r , met Staggers and t h e y

along w i t h Cloe Paugh went up t o t h e f i r e scene and c a r e f u l l y covered and d i s -

cussed t h e e n t i r e l o s s .        D i v e l had some f i f t e e n years o f experience i n a d j u s t -

i n g f i r e s and h i s company d i d adjustment work f o r t h e defendant.                           D i v e l took

several photographs o f t h e f i r e scene, a l l o f which were marked and o f f e r e d as
defendant's e x h i b i t s a t t h e t r i a l .        These photos showed t h e remnants and

d e b r i s of t h e t r a i l e r house and cabins.               A t the t r i a l Divel t e s t i f i e d t h a t

Staggers f u l l y discussed w i t h him t h e ownership o f t h e destroyed s t r u c t u r e s

and t h e contents i n them.               Dive1 t e s t i f i e d he concluded a t t h a t t i m e t h e l o s s

was a t o t a l one and he was unable t o determine t h e o r i g i n o f f i r e .                         Further,

on t h a t day, October 12, 1963, D i v e l d i d n o t request any w r i t t e n statements

from Staggers about t h e items o f l o s s .                  The r e c o r d f u r t h e r r e v e a l s t h a t Cloe

Paugh a l s o f e l t t h e f i r e was a t o t a l l o s s .          She r e a f f i r m e d t h i s i n her l e t t e r

t o t h e defendant on October 17, 1966.

            About t h e same t i m e D i v e l gave t o Staggers a form t o f i l l o u t e n t i t l e d

"statement o f l o s s " .           D i v e l t e s t i f i e d these forms were "standard company forms"

f o r t h e purpose$ o f h e l p i n g t h e i n s u r e d l i s t t h e i r i n v e n t o r i e s o f losses.

D i v e l d i d n o t r e c a l l whether he t o l d Staggers t o send t h e completed "statement

o f l o s s " t o h i m s e l f o r t o Cloe Paugh b u t D i v e l d i d acknowledge u l t i m a t e l y r e -

c e i v i n g i t . The r e c o r d f u r t h e r r e v e a l s Staggers stayed a t t h e Neely ranch a

few days a f t e r t h e f i r e and then drove d i r e c t l y down t o Idaho F a l l s t o v i s i t

w i t h Mrs. Johnson.          A t t h e time o f t h e f i r e Mrs. Johnson was i n t h e s t a t e o f

Utah a t t e n d i n g t h e f u n e r a l o f her f a t h e r .     Upon her r e t u r n t o Idaho F a l l s

from t h e f u n e r a l one week l a t e r , t h e two o f them began t o compi 1e t h e 1 is t s o f

personal p r o p e r t y l o s t i n t h e f i r e .      The r e c o r d shows these two e l d e r l y people

worked d i l i g e n t l y i n t h i s regard, r e l y i n g much on t h e i r memory as t h e y had no

p r i o r l i s t s t o work from.        The two o f them d i d complete t h e "statement o f l o s s "

and Staggers t e s t i f i e d he took i t t o Cloe Paugh sometime b e f o r e Thanksgiving

o f t h a t year.       I t contained t h e l i s t s o f t h e p r o p e r t y l o s t i n t h e f i r e and

t h e c o s t s and values o f such p r o p e r t y .          A t t h i s p o i n t the record discloses

t h a t e v e r y t h i n g seemed i n o r d e r as f a r as t h e p l a i n t i f f s were concerned u n t i l

t h e y r e c e i v e d a l e t t e r i n January, 1964 from D i v e l r e q u e s t i n g a n a r r a t i v e

statement from them r e g a r d i n g t h e l o s s and expecting them t o come t o Ennis t o

do so.      Staggers promptly responded t o D i v e l by l e t t e r dated January 13, 1964,

and s t a t e d as f o l l o w s :
          "Sorry t o say I d o n ' t intend t o be i n Ennis t i l l
          l a s t of May or June * * *. I t would be much more s a t i s -
          factory w i t h me i f you could arrange a settlement f o r m  e
          i n the near f u t u r e without m driving some 350 miles
                                            e
          over icy roads, t h a t will require some expenses t o me."
          The record shows Staggers did not receive a reply from Divel t o the
above l e t t e r and Divel admitted f u r t h e r a t the t r i a l t h a t a f t e r he received
the l e t t e r t h e e n t i r e matter was referred from Divel's o f f i c e a t Ennis t o
the Helena o f f i c e .      Divel f u r t h e r t e s t i f i e d t h a t when he wrote Staggers on
January 10, 1964 he knew Staggers was down in Idaho and i t would be d i f f i -
c u l t f o r Staggers t o come t o see h i m .          Approximately one month l a t e r a Mr.
Kennedy, who was an agent of defendant, v i s i t e d with Staggers in Idaho Falls
about the f i r e but even a t t h a t time he did not ask f o r a narrative statement
o r anything e l s e .      Staggers t e s t i f i e d Kennedy t o l d h i m the case was being
transferred t o Idaho F a l l s so t h a t " I wouldn't have t o go t o Bozeman".                         In view
of the foregoing i t i s d i f f i c u l t f o r t h i s Court t o comprehend defendant's
contention t h a t p l a i n t i f f s ' compliance in the matter was "half-hearted, i n -
e f f e c t u a l , or careless compliance".          On the contrary, our f u l l review of t h i s
matter leads us t o the conclusion t h a t p l a i n t i f f s did a l l t h a t reasonable
persons would be expected t o do under the circumstances they were confronted
with.    They f u l l y cooperated w i t h Divel and Cloe Paugh in discussing a l l
aspects of t h e f i r e .      The evidence shows the p l a i n t i f f s d i l i g e n t l y f i l l e d out
the "statement of l o s s " forms.             N objection whatsoever was ever made by de-
                                                o
fendant regarding the v a l i d i t y of the "statement of loss" form until October

12, 1965, approximately two years a f t e r the f i r e , and even then no s p e c i f i c
points of dispute were alleged by defendant.                        A t t h a t date defendant company
wrote a l e t t e r t o p l a i n t i f f s ' lawyer and stated t h a t "no proper proof of l o s s
was ever presented".            This l e t t e r was written i n reply t o a l e t t e r from
p l a i n t i f f s ' attorney t o defendant transmitting a "Supplemental and Amended
Report and Proof of Loss" dated August 31, 1965.                         This document was prepared
a t the direction          of p l a i n t i f f s ' attorney a f t e r p l a i n t i f f s came t o him f o r
counsel i n view of the f a c t they had not obtained payment on t h e i r claim of
loss f o r a period of two years since the f i r e .
          On the basis of the foregoing f a c t s the jury found t h a t the plain-
t i f f s did s u b s t a n t i a l l y and reasonably comply w i t h the provisions of t h e i r
respective insurance policies.            The record herein lends sound credence t o
the diligence and good f a i t h of these two elderly individual p l a i n t i f f s in
complying w i t h the proof of l o s s provisions contained within t h e i r policies.
W feel the language contained i n the early decision of Ohio Farmers' Ins.
 e
Co. v. Cochran, 104 Ohio S t . 427, 135 N.E. 537, 539 (1922) adds thoughtful
import t o the crux of defendant's conduct and a c t i v i t y in t h i s matter.
There the Ohio Supreme Court was asked t o decide the question of whether an
insured substantial l y compl ied w i t h a p a r t i c u l a r pol icy provision requiring
a sixty-day notice of a f i r e claim and the Court s t a t e d :
          "The law of an insurance contract i s not basically
          d i f f e r e n t from t h e law of any other kind of contract.
          Where there i s substantial performance upon one s i d e ,
          there should be substantial performance upon the other
          side; and there i s substantial performance upon one s i d e
          when such performance does not r e s u l t in any wrongful
          substantial injury t o the other side.


          " I t i s time t o g e t away from some of the old-time doc-
          trines--insuring the owner of property i n 1 l i n e , and
          then uninsuring h i m i n the next 99, involving h i s con-
          tractual r i g h t in a maze of conditions precedent, con-
          d i t i o n s subsequent, conditions directory, and conditions
          mandatory, under a contract, requiring formal and
           technical exactness as t o the manner and form of a l l
          these policy provisions i n insurance r i s k s , which a r e
          not required i n any other kind of contract.
          "Under the record in t h i s case, we find no prejudicial
          e r r o r materially affecting the substantial r i g h t s of
          p l a i n t i f f in e r r o r , and we f u r t h e r find under the record
          t h a t substantial j u s t i c e has been done."
          In reference t o the t h i r d issue on appeal, namely, was there suf-
f i c i e n t evidence t o support t h e verdict of the jury based upon the legal
doctrine of waiver.        Our examination of a l l the f a c t s herein confirms there
was s u f f i c i e n t evidence of waiver.    The p l a i n t i f f s did everything reasonably
required of them i n processing t h e i r claim f o r l o s s .        They d i l i g e n t l y com-
piled the required information and promptly submitted i t t o Cloe Paugh
                                                                    that
thinking nothing more was required.           The f a c t s bear out/ the defendant, by
i t s conduct, caused the p l a i n t i f f s t o believe t h a t nothing further of them
was in f a c t required.     N one on behalf of the insurance company, including
                              o
agents Cloe Paugh or Divel, ever requested any further information from the
p l a i n t i f f s until lcng a f t e r the sixty-day period had expired.     Indeed i t was
not until January 10, 1964 t h a t Divel ever wrote to the p l a i n t i f f s and even
a t that specific instance the defendant made no mention whatsoever about
the timeliness of the furnishing of any information.                I t was more than two
years a f t e r the f i r e before the defendant ever expressed any objection about
there not being proper proof of loss.            The Court's language contained in Snell
v . North British & Mercantile Ins. Co., 61 Mont. 547, 553, 203 P. 521, bears
d i r e c t applicability t o the question of waiver as pertains t o the f a c t s now
before us.     In Snell t h i s Court, in discussing the issue of waiver i n f i r e
insurance cases, stated the fol 1 owing:
          " * * * I t i s conceded by defendant that i f , in connection
          w i t h the estimate or ascertainment of 1 oss, defendant's
          agent so conducted himself that he misled the p l a i n t i f f
          and caused him to understand that nothing further would
          be required of him, such cor~ductwould constitute a waiver.
          This i s undoubtedly a correct statement of the rule.
          (26 C. J . 403, and cases c i t e d . )


         "Upon the second ground the great weight of authority i s
         t o the effect t h a t , i f the assured attempts t o comply
         with the requirement of the policy as to notice and proof
         of l o s s , the receipt and retention of proof of loss by the
         insurer without objection constitutes a waiver of i t s
         right to object thereto as not satisfying the require-
         ments of the pol icy. (26 C.J. 399, and cases c i t e d . ) "
          On the basis of the foregoing as applied to the instant f a c t s , we
can only conclude defendant's receipt and retention of the "statement of
loss", without objection, clearly and unequivocally constituted waiver of
any subsequent claim by defendant of p l a i n t i f f s ' f a i l i n g to f i l e a proof of
loss.   W further find no merit i n defendant's argument that section 40-
         e
3733, R.C.M.    1947, prohibits waiver.        Section 40-3733 does provide t h a t the
a c t of "Furnishing forms f o r reporting a loss or claim, for giving information
relative thereto, or for making proof of l o s s , or receiving or acknowledging
receipt of any such forms or proofs completed or uncompleted" shall not
constitute waiver.      However, w deem i t equally clear our legislature d i d
                                  e
not intend t h a t an insurance company could furnish forms to the insured t o
f i l l out and then mislead the insured into believing t h a t t h i s was a l l the
information required.       Neither do w t h i n k our legislature would allow the
                                        e
insurance company to receive these forms and then retain them f o r a period
of sixty days without objection and then l a t e r claim t h a t the insured had
forfeited a l l his policy rights.
           As a corollary issue herein, defendant raises the applicability of
section 40-3732, R.C.M.      1947, which concerns the furnishing of proof of loss
forms, and making i t a duty of the insured to request such forms.               The evi-
dence clearly shows Staggers requested and received from Dive1 and Paugh
the proper forms, and the agents gave him forms marked "statement of loss",
which he properly f i l l e d out.    The defendant now infers that these "state-
ment of loss" forms are something different from "proof of loss" forms.
However, defendant offered no evidence as to what a "proof of loss" form was
and we find nothing i n p l a i n t i f f s ' conduct t o hold otherwise than that they
in no way failed to perform any duty imposed by section 40-3732.
           Defendant next raises the contention t h a t the d i s t r i c t court erred
in excluding defendant's proposed exhibit G .           Defendant's proposed exhibit G
was a l e t t e r from attorney Jones, on behalf of Daryl Stroud, requesting plain-
t i f f Staggers to remove his belongings from the cabin.           The defendant contends
that t h i s l e t t e r would have some legitimate bearing on the motive f o r the
fire.   However, the record clearly shows that defendant offered no proof t h a t
p l a i n t i f f Staggers deliberately s e t the f i r e to the cabins.   Both Mr. and Mrs.
Stroud t e s t i f i e d that when they saw Staggers leave the area the afternoon of
the f i r e , they did not see any f i r e in the area.      Thus, the defendant failed
t o show any relevancy, competency or materiality t o defendant's proposed ex-
hibit G.
           Finally, defendant contends the d i s t r i c t court erred i n giving or
 refusing c e r t a i n instructions t o the jury.               Namely, defendant suggests
 t h a t the c o u r t ' s instruction No. 9 and No. 10, r e l a t i n g t o proof of l o s s ,
 engender manifest inconsistencies.                   These two instructions c l e a r l y purport
 t o s e t f o r t h the correct principles of law concerning proof of loss and
 substantial compliance.
             Defendant next objects t o the c o u r t ' s instruction No. 16 on valued
 policy, which instruction was based upon section 40-4302, R.C.M.                           1947, and
 reads as follows:
             " I t i s the law of the S t a t e of Montana t h a t whenever any
             policy of insurance shall be written t o insure any i m -
             provements upon real property in t h i s s t a t e against l o s s
             by f i r e , and the property insured shall be wholly des-
             troyed, without criminal f a u l t on the p a r t of t h e insured,
             the amount of insurance written in such policy shall be
             taken conclusive1y t o be the t r u e value of t h e property
             insured and the t r u e amount of l o s s and measure of dam-
             ages. You a r e f u r t h e r instructed t h a t the Nashua t r a i l e r
             home i n question i s t o be considered as an improvement
             upon real property, the agreed value of which i s $4,500.00."
             Section 40-4302, R.C.M.            1947, reads as follows:
             "Val ued pol icy 1aw. Whenever any pol icy of insurance shall
             be written t o insure any improvements upon real property
             i n t h i s s t a t e against lbss by f i r e , tornado or l i g h t n i n g , and
             the property insured shall be who1 l y destroyed, without
             criminal f a u l t on the p a r t of the insured o r h i s assigns,
             the amount of the insurance written i n such policy shall be
             taken conclusively t o be the t r u e value of the property in-
             sured, and the t r u e amount of l o s s and measure of damages,
             and the payment of money as a premium f o r insurance shall be
             prima f a c i e evidence t h a t t h e party paying such insurance
             premium i s the owner of the property insured; provided,
             t h a t any insurance company may s e t up fraud in obtaining
             the policy as a defense t o a s u i t thereon."
             Instruction No. 16 applied solely t o the Nashua t r a i l e r house
which was covered by the insurance policy in the amount of $4,500.                            Agent
Dive1 t e s t i f i e d t h a t the t r a i l e r house was a t o t a l l o s s .   After reviewing
a1 1 the testimony herein pertaining t o the appropriateness of instruction
No. 16, we conclude the d i s t r i c t court properly determined, as a matter of
law, t h a t the t r a i l e r was an "improvement upon real property", within the
meaning of section 40-4302, supra.                  The testimony shows the t r a i l e r house had
been o r i g i n a l l y moved t o i t s location a t the Staggers ranch in 1958.                 It
     was f u l l y s e t u p to live i n , connected to a cesspool, and hooked u p to a
     l i g h t plant.     I t was also connected to propane and o i l tanks.        W feel our
                                                                                     e
     decision in Meccage v . Spartan Ins. Co., 156 Mont. 135, 477 P.2d 115, clearly
     supports our conclusion that defendant's issue a t bar i s without merit.                   In
     Meccage w held that a t r a i l e r house was an "improvement on real property"
              e
     mder the definition of section 40-4302.
                    Lastly, defendant argues the d i s t r i c t court erred in f a i l i n g to sub-
     ini t    t o the jury defendant's proposed instruction No. 5, concerning the time
     when proof of loss was to be given as s e t forth in the policies.                 W find
                                                                                         e
     that t h i s proposed instruction was repetitious of c o u r t ' s instruction No. 7,
     concerning proof of l o s s , substantial compliance and waiver, and No. 10 de-
     fining substantial compliance.             I t i s clear therefore, that a l l matters in
     t h e offered instruction were f u l l y covered in the instructions properly sub-

     mitted, and accordingly the d i s t r i c t court was not in error in refusing to
     submit defendant's proposed instruction No. 5.
                    Our complete review of a l l the testimony contained in the e n t i r e
     transcript of t h i s appeal leads us to the conclusion p l a i n t i f f s were d i l i -
     gent, sincere, and completely proper in f i l i n g t h e i r claims in the above matter.
     On the basis of the foregoing and finding no reversible error herein, the j u d g -
     ment of the d i s t r i c t court i s aff
     court to show Hortense Johnson




n            . Jack Shanstrom, d i s t r i c t judge,
' 1 s i t t i n g in place of Mr. Justice Castles.
  /
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