The rule is often stated to be that the parties and issues in the two actions or proceedings must be the same, yet it is well settled that it is only necessary that they be essentially the same; the word "parties" comprehending privies in blood, in law, or in estate. McInturff v. Insurance Co., 248 Ill. 92, 140 Am. St. Rep. 153, 21 Ann. Cas. 176, and note at page 179, 93 N.E. 369; 22 C.J. 428, §§ 513, 514. Neither is it necessary to entitle the evidence on the former trial to be admitted in a subsequent one that the causes of action be identical.
The cases of Harger v. Thomas, 44 Pa. 128, 84 Am. Dec. 422, and Zelen v. Andrews, Moody M. 336, 31 R. R. 736, are against the admissibility of the evidence. We also find McInturff v. Ins. Co., 248 Ill. 92, 93 N.E. 369, 140 Am. St. Rep. 153, 21 Ann. Cas. 176, against it. The case of Gavan v. Ellsworth, 45 Ga. 283, is in favor of the admissibility of the evidence, and is a case very similar to the one here, and exactly in point on the precise phase of the question involved.
Further, although we do not believe that the contract language is ambiguous, if we did find it ambiguous, we would construe it in Shell's favor. See Mclnturff v. Dairyland Ins. Co., 56 Wn. App. 773, 775, 785 P.2d 843 (1990) (when language in a policy is unclear, the court must construe it in favor of the insured). Indeed, some CGL policies have different language.
Undefined words and terms used in an insurance policy should be understood in their ordinary, plain, and popular sense. Boeing Co. v. Aetna Cas. Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507, 87 A.L.R.4th 405 (1990); Federated Am. Ins. Co. v. Strong, 102 Wn.2d 665, 670, 689 P.2d 68 (1984); McInturff v. Dairyland Ins. Co., 56 Wn. App. 773, 775, 785 P.2d 843 (1990). Words should be read as the average person would read them, and no strained or forced interpretations should be given.
[1, 2] As with other contracts, the interpretation of an insurance policy is one of law. McInturff v. Dairyland Ins. Co., 56 Wn. App. 773, 775, 785 P.2d 843 (1990). Exclusions in insurance polices are strictly construed against the insurer and coverage will not be excluded unless the policy does so in clear language.
The rule seems to be that the testimony of a witness, who has previously given evidence on the trial of a case, may be reproduced by any person who is able to give, in substance, the testimony given by said witness, provided that it first be shown that said witness is dead, or is beyond the jurisdiction of the court, and cannot be found after diligent inquiry, or that he has been kept away from the trial by the adverse party. See 16 Cyc. 1088 et seq.; 20 Cent. Digest, §§ 2401-2406, inclusive; Greenl. Ev. vol. 1, § 163; 14 Ency. Ev. 584; Boyd v. St. L. S.W. Ry. Co., 101 Tex. 411, 108 S.W. 813, and cases cited; Id., 119 S.W. 1154; Sullivan v. State, 6 Tex.App. 319 [ 6 Tex.Crim. 319], 32 Am.Rep. 580; McInturff v. Insurance Co., 248 Ill. 92, 93 N.E. 369. This evidence having been reproduced on behalf of the plaintiff, the question here presented is whether or not appellee would have the right to impeach said witness by showing that he had made contradictory statements to those given at said former trial, without laying a predicate therefor. It is a well-settled rule of evidence, for which we need not quote authority, that no witness can be impeached in this way without laying a predicate for the introduction of the impeaching testimony; that is, by first calling the witness' attention to the time, place, and person to whom said contradictory statements may have been made, in order that the witness, if he desires so to do, may explain how he came to make such statements, if he admits making them, or give him the opportunity to deny having made the same. Appellee, however, contends that, where a witness is dead at the time the testimony is reproduced, or is beyond the jurisdiction of the court (which is treated in law as equivalent the