81 S. W. Rep. 637; Phoenix Ins. Co. v. Kerr, 129 Fed. Rep. 723, C. C. A.

2. Boyd v. Cedar Rapids Ins. Co., 70 Iowa, 325.

RULE 53

Denial of Liability Must Extend to Entire Claim. A denial of liability to operate as a waiver of statement or proof of loss must extend to all claim under the policy; a denial of liability as to a part of goods destroyed does not waive the statement or proof in respect to other property.

Milwaukee Mechanics' Ins. Co. v. Winfield, 6 Kans. App. 527, 51 Pac. Rep. 567. And see Commercial Ins. Co. v. Allen, 80 Ala. 571.

RULE 54.

Denial of Liability Coupled with Demand for Proofs. Where liability is denied, but such denial is coupled with a demand for the statement or proof of loss, either at the same time,' or subsequently if assured has ample time to comply therewith,2 it does not operate as a waiver.

1. Phoenix Ins. Co. v. Minner, 64 Ark. 590, 44 S. W. Rep. 75, 27 Ins. L. J. 423.

3. Hahn v. Guardian Assur. Co., 23 Oreg. 576, 32 Pac. Rep. 683. And see Waiver."

RULE 55.

Dattal of Liability Coupled with Disclaimer of Intention to

Waive.

A denial of liability operates as a waiver of the statement or proof of loss, notwithstanding it is coupled with a disclaimer of any intention to waive any condition of the policy.1

1. Lang v. Eagle Fire Co., 12 App. Div. 39, 42 N. Y. Supp. 539; Probst v. Insurance Co. of N. A., 64 Mo. App. 484.

RULE 56.

Question of Waiver as One of Fact or Law.

The question of the waiver of the statement or proof of loss by a denial of liability is ordinarily one of fact, peculiarly one for determination of a jury;' but may be a question of law when the act which constitutes a

waiver is intentionally done, and is unequivocal in significance, without regard to the intention of the parties; or where the facts are undisputed.3

1. Robinson v. Pennsylvania Ins. Co., 90 Me. 385, 38 Atl. Rep. 320, 27 Ins. L. J. 36; Arnold v. Hartford Ins. Co., 55 Mo. App. 149.

2. Cooper v. Insurance Co. of Pa., 96 Wis. 362, 71 N. W. Rep. 606, 26 Ins. L. J. 985.

3. Helvetia Swiss Ins. Co. v. Allis Co., 11 Colo. App. 264, 53 Pac. Rep. 242.

RULE 57.

When Denial of Liability Operates as Waiver.

Where the statement or proof of loss is not furnished within the prescribed time, a subsequent refusal to pay is not a waiver;1 it is the denial of liability during the time required for filing the statement or proof of loss that constitutes a waiver.2

1. Phoenix Ins. Co. v. Searles, 100 Ga. 97, 27 S. E. Rep. 779; Brink v. Hanover Ins. Co., 70 N. Y. 593.

2. Gross v. Milwaukee Mechanics' Ins. Co., 92 Wis. 656, 66 N. W. Rep. 712, 25 Ins. L. J. 631; State Ins. Co. v. School District, 66 Kans. 77, 71 Pac. Rep. 272; Deitz v. Providence-Washington Ins. Co., 33 W. Va. 526, 11 S. E. Rep. 50; Farnum v. Phoenix Ins. Co., 83 Cal. 246; German Ins. Co. v. Gueck, 130 Ill. 345, 23 N. E. Rep. 112; Carson v. German Ins. Co., 62 Iowa, 433, 17 N. W. Rep. 650; Phoenix Ins. Co. v. Spiers, 87 Ky. 285, 8 S. W. Rep. 453; Corycon v. ProvidenceWashington Ins. Co., 79 Mich. 187, 44 N. W. Rep. 431; Mensing v. American Ins. Co., 36 Mo. App. 602; Sun Ins. Co. v. Mattingly, 77 Tex. 162, 13 S. W. Rep. 1016; Phoenix Ins. Co. v. Bachelder, 32 Nebr. 490, 49 N. W. Rep. 217; Phoenix Ins. Co. v. Weeks, 45 Kans. 751, 26 Pac. Rep. 410; California Ins. Co. v. Grassy, 15 Colo. 70, 24 Pac. Rep. 577; Commercial Union Ins. Co. v. State, 113 Ind. 331, 15 N. E. Rep. 518; Farmers' Ins. Co. v. Moyer, 97 Pa. St. 441; Miller v. Alliance Ins. Co. (U. S. Cir.), 19 Blatchf. 308; Batchelor v. People's Ins. Co., 40 Conn. 56; Planters' Ins. Co. v. Comfort, 50 Miss. 662; Portsmouth Ins. Co. v. Reynolds, 32 Gratt. (Va.) 613; Sheppard v.

Peabody Ins. Co., 21 W. Va. 368; Roe v. Dwelling-House Ins. Co., 149 Pa. St. 94; Westchester Ins. Co. v. Coverdale, 9 Kans. App. 651, 58 Pac. Rep. 1029; Home Ins. Co. v. Sylvester, 25 Ind. App. 207, 57 N. E. Rep. 991; Merchants' Ins. Co. v. Nowlin, Tex. Civ. App. 56 S. W. Rep. 198; Medley v. German Alliance Ins. Co., 55 W. Va. 342, 47 S. E. Rep. 101.

RULE 58.

Nonwaiver Agreement.

While the insured and the insurance company or its adjuster may make a written agreement after a loss preventing a claim of waiver of proof of loss by a denial of liability, an adjuster may, notwithstanding such a written agreement, waive proof of loss by an unequivocal denial of liability.2

1. Insurance Co. of N. A. v. Caruthers, So. Rep. 911.

Miss.

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2. Cooper v. Insurance Co. of Pa., 96 Wis. 362, 71 N. W. Rep. 606, 26 Ins. L. J. 985.

While there may be a waiver or estoppel after the expiration of the time limited in the policy for furnishing of the statement or proof of loss,' if not so furnished, the waiver should be founded on what is said or done during the prescribed time when the assured still had opportunity to comply with the condition; if furnished after limited period, silence of the company does not operate as a waiver of the objection that it was not furnished in time; but entering into an appraisal does; and so acting or speaking thereon as if furnished in time, coupled with silence as to time, may be evidence of waiver; but if objection is made on that spe

cific ground, delay in making it does not operate as a waiver."

1. Cohn v. Orient Ins. Co., 62 Mo. App. 271. See Rule 62 and cases thereunder.

2. Cohn v. Orient Ins. Co., 62 Mo. App. 271; Bolan v. Fire Assoc., 58 Mo. App. 225; Dwelling-House Ins. Co. v. Jones, 47 Ill. App. 261; Beatty v. Lycoming Ins. Co., 66 Pa. St. 9; Engebretson v. Hekla Ins. Co., 58 Wis. 301; Brown v. London Assur. Co., 40 Hun, 101; Exchange Bank v. Thuringia Ins. Co., Mo. App. 83 S. W. Rep. 534.

3. Cohn v. Orient Ins. Co., 62 Mo. App. 271; Guernsey v. American Ins. Co., 17 Minn. 104; Brink v. Hanover Ins. Co., 70 N. Y. 593; Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Bell v. Lycoming Ins. Co., 19 Hun, 238; Perry v. Caledonian Ins. Co., App. Div. 93 N. Y. Supp. 50. And see

Rule 10.

4. Bishop v. Agricultural Ins. Co., 130 N. Y. 488, 29 N. E. Rep. 844.

5. Home Ins. Co. v. Baltimore Warehouse Co., 3 Otto (U. S.) 527; Mickey v. Burlington Ins. Co., 35 Iowa, 174; Brink v. Hanover Ins. Co., 80 N. Y. 108; Commercial Union Assur. Co. v. Hocking, 115 Pa. St. 407, 8 Atl. Rep. 589; Hibernia Ins. Co. v. O'Connor, 29 Mich. 241.

6. Carey v. Allemannia Ins. Co., 171 Pa. St. 210, 33 Atl. Rep. 185.

As to proofs of loss and waiver under the Iowa statute, see Warshawky v. Anchor Mutual Ins. Co., 98 Iowa, 221, 67 N. W. Rep. 237; Dyer v. Des Moines Ins. Co., 103 Iowa, 524, 72 N. W. Rep. 68; Pringle v. Des Moines Ins. Co., 107 Iowa, 742, 77 N. W. Rep. 521, 28 Ins. L. J. 138; Parks v. Anchor Mutual Ins. Co., 106 Iowa, 402, 76 N. W. Rep. 743.

RULE 60.

Waiver Once Made Final.

Where once waived a subsequent filing or furnishing of proof of loss by the assured does not affect his right under such waiver.

Massell v. Protective Mutual Ins. Co., 19 R. I. 565, 35 Atl. Rep. 209; Warshawky v. Anchor Mut. Ins. Co., 98 Iowa, 221, 67 N. W. Rep. 237. And see " Waiver."

RULE 61.

Effect of Statute Fixing Amount of Loss on Building.

Where the policy requires a statement or proof of loss for other purposes than merely to show the amount of loss, a State statute making a loss total on building does not operate to relieve the assured from furnishing proofs of loss.

McCollum v. Hartford Ins. Co., 67 Mo. App. 76.

RULE 62.

Waiver of Statement or Proofs of Loss.

There is no fixed or inflexible rule as to what shall or shall not be regarded in the law as a waiver, or as evidence of waiver of the statement or proof of loss, or of defects therein. The courts are inclined to take hold of slight circumstances bearing on the subject and to regard them as at least evidence of waiver requiring the question as one of fact to be submitted to a jury. Anything is sufficient which the proper officer or representative of the insurance company is willing to accept;1 waiver may be inferred from a course of conduct or declaration leading assured to believe that performance is not required;2 any declaration or conduct by adjuster or special agent inconsistent with an intention to demand strict compliance; an offer to pay a certain sum unless in terms made without prejudice, or a promise to pay, or to pay as appraised, may be evidence of waiver; and so where the company demands further specific proof, knowing that assured is unable to comply with it or comply in time, or demands something not required by the policy; or after time for service has expired, by any act recognizing liability;7

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