issue is raised by a denial of the necessary allegation of the furnishing of the proofs. If time is essential, and the period within which they might have been furnished has elapsed, the issue is one in bar. If there is no reason why proofs furnished, even after the trial, would not be sufficient, the issue is one in abatement. The latter part of this doctrine, at least, is also supported by Weide v. Germania Ins. Co., 29 Fed. Cas. 594, and Wiede v. Insurance Co. of North America, Id. 1149. An abstract of the case of Kenton Ins. Co. v. Wiggenton, reported in 10 Ky. Law Rep. 587, states, however, that it was there decided that, where the policy provides that no action can be maintained without preliminary proof, an objection to the absence thereof is in the nature of a plea in bar, whether raised by demurrer or answer.

(c) Evidence-Admissibility.

The proofs of loss furnished the company are admissible in evidence to show that such proofs were made and delivered as required by the terms of the policy."

Such was the ruling in Williams v. Hartford Ins. Co., 54 Cal. 442, 35 Am. Rep. 77; Menk v. Home Mut. Ins. Co., 76 Cal. 50, 14 Pac. 837, 18 Pac. 117, 9 Am. St. Rep. 158; Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Phoenix Ins. Co. v. Lawrence, 4 Metc. (Ky.) 9, 81 Am. Dec. 521; Lewis v. Burlington Ins. Co., 80 Iowa, 259, 45 N. W. 749; Baile v. St. Joseph Fire & Marine Ins. Co., 73 Mo. 371; Breckinridge v. American Cent. Ins. Co., 87 Mo. 62; Summers v. Home Ins. Co., 53 Mo. App. 521; Sexton v. Montgomery County Mut. Ins. Co., 9 Barb. (N. Y.) 191; American Ins. Co. v. Francia, 9 Pa. 390; Fleming v. Ins. Co. of Pennsylvania, 12 Pa. 391; Klein v. Franklin Ins. Co., 13 Pa. 247; Continental Ins. Co. v. Pruitt, 65 Tex. 125; Hennessy v. Niagara Fire Ins. Co., 8 Wash. 91, 35 Pac. 585, 40 Am. St. Rep. 892; Kahn v. Traders' Ins. Co., 4 Wyo. 419, 34 Fac. 1059, 62 Am. St. Rep. 47.

A letter supplementing the proofs is admissible (Hanover Fire Ins. Co. v. Lewis, 28 Fla. 209, 10 South. 297); and also a letter from the company pointing out defects (Cummins v. German-American Ins. Co., 192 Pa. 359, 43 Atl. 1016).

It is decided in Runkle v. Hartford Ins. Co., 99 Iowa, 414, 68 N. W. 712, and Hibernia Ins. Co. v. Starr (Tex. Sup.) 13 S. W. 1017, that it is no objection to the admission of proofs in evidence that they contain untrue statements and do not conform to the policy.

1 As to the effect of the proofs as evidence of the truth of statements therein contained, see post, p. 3433.

But proofs signed by others than the insured are not admissible under an allegation of proofs signed by the insured in accordance with the requirements of the policy.

Hanover Fire Ins. Co. v. Shrader, 11 Tex. Civ. App. 255, 31 S. W. 1100;
Citizens' Ins. Co. v. Shrader (Tex. Civ. App.) 33 S. W. 584.

Neither parol evidence, copies, or other secondary evidence can be admitted to prove the contents of the notice or proofs, unless due notice has first been given the company to produce the originals, or other proper foundation laid.

Such rule may be deduced from Hartford Fire Ins. Co. v. Enoch (Ark.) 77 S. W. 899; American Ins. Co. v. Walston, 111 Ill. App. 133; American Century Ins. Co. v. Hathaway, 43 Kan. 399, 23 Pac. 428; State Ins. Co. v. Belford, 2 Kan. App. 280, 42 Pac. 409; Spring Garden Mut. Ins. Co. v. Evans, 9 Md. 1, 66 Am. Dec. 30; Dade v. Ætna Ins. Co., 54 Minn. 336, 56 N. W. 48; Insurance Co. v. Wilkerson, 53 Ark. 353, 13 S. W. 1103; Coffman v. Niagara Fire Ins. Co., 57 Mo. App. 647; Northern Assur. Co. v. Samuels, 11 Tex. Civ. App. 417, 33 S. W. 239; Underwriters' Fire Ass'n v. Henry (Tex. Civ. App.) 79 S. W. 1072; Dowling v. Lancashire Ins. Co., 92 Wis. 63, 65 N. W. 738, 31 L. R. A. 112.

It was further held in Dade v. Ætna Ins. Co., 54 Minn. 336, 56 N. W. 48, that a mere verbal notice to defendant's attorneys at the trial, to produce the original, was not a proper foundation.

On the other hand, it has been held in Indiana that plaintiff may read a copy of the notice retained by him at the time he forwarded the original to defendant's secretary, without having notified the defendant to produce the original (Commonwealth's Ins. Co. v. Monninger, 18 Ind. 352).

Though the fact that the company, when notified so to do, fails to produce on trial the proofs furnished, raises no presumption that the proofs were sufficient, but only authorizes the introduction of secondary evidence as to their contents (Spring Garden Mut. Ins. Co. v. Evans, 9 Md. 1, 66 Am. Dec. 30), yet where defendant, after notice to produce the original proofs, fails to do so without assigning any reason therefor, evidence by defendant's agent as to defects therein is properly excluded (Northern Assur Co. v. Samuels, 11 Tex. Civ. App. 417, 33 S. W. 239).

(d) Same-Sufficiency.

Though, as just shown, secondary evidence of the contents of the proofs can only be given under certain circumstances, never

theless proof of the fact that due and sufficient notice and proofs have been given may be made by proof that the company proceeded to an adjustment.2

Reference may be made to Farrell v. Farmers' Mut. Fire Ins. Co., 66 Mo. App. 153; Townsend v. Merchants' Ins. Co., 36 N. Y. Super. Ct. 172, 45 How. Prac. 501; Welsh v. London Assur. Corp., 151 Pa. 607, 25 Atl. 142, 31 Am. St. Rep. 786; Bon Aqua Imp. Co. v. Standard Fire Ins. Co., 34 W. Va. 764, 12 S. E. 771.

The production at the trial, by the company, of the notice and proofs served by the insured, is sufficient evidence of their service. Runkle v. Hartford Ins. Co., 99 Iowa, 414, 68 N. W. 712; Westlake v. St. Lawrence Mut. Ins. Co., 14 Barb. (N. Y.) 206; Continental Ins. Co. v. Pruitt, 65 Tex. 125.

But as to the mere fact that notice and proof were delivered, or that they were delivered at a specified time, the insured is not confined to such testimony. He may prove such facts by parol testimony without laying any foundation, as for the introduction of secondary proof.

Commercial Fire Ins. Co. v. Morris, 105 Ala. 498, 18 South. 34; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164, 5 Am. Rep. 115; Bish v. Hawkeye Ins. Co., 69 Iowa, 184, 28 N. W. 553; Hagan v. Merchants' & Bankers' Ins. Co., 81 Iowa, 321, 46 N. W. 1114, 25 Am. St. Rep. 493; Heusinkveld v. St. Paul Fire & Marine Ins. Co., 106 Iowa, 229, 76 N. W. 696; Dade v. Etna Ins. Co., 54 Minn. 336, 56 N. W. 48; Pelzer Mfg. Co. v. Sun Fire Office of London, 36 S. C. 213, 15 S. E. 562; Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20.

And the rendition of proofs may be inferred under direct evidence of their delivery, though the company's agent has no recollection of the transaction (Oakland Home Ins. Co. v. Davis [Tex. Civ. App.] 33 S. W. 587).

(e) Questions for jury.

Though the proofs as shown are admissible, it is ordinarily for the court to determine their sufficiency, leaving to the jury only the question of identification or whether they were actually furnished. Reference may be made to Gauche v. London & L. Ins. Co. (C. C.) 10 Fed. 347; Cannon v. Phoenix Ins. Co., 110 Ga. 563, 35 S. E. 775, 78 Am. St. Rep. 124; Thomas v. Burlington Ins. Co., 47 Mo. App.

Adjustment as a waiver of notice and proofs, see post, p. 3510.
B.R.INS.-214

169; Klein v. Franklin Ins. Co., 13 Pa. 247; Commonwealth Ins. Co. v. Sennett, 41 Pa. 161; Cole v. Assurance Co., 188 Pa. 345, 41 Atl. 593; Humboldt Fire Ins. Co. v. Mears, 29 Pittsb. Leg. J. O. S. (Pa.) 365, 1 Penny. 513; Hibernia Ins. Co. v. Starr (Tex. Sup.) 13 S. W. 1017.

In People's Fire Ins. Co. v. Pulver, 127 Ill. 246, 20 N. E. 18, and Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350, however, where there were exceptional circumstances excusing a full compliance with the policy requirements, it was held that it was for the jury to determine what degree of particularity was required under the circumstances.

In Fleming v. Insurance Co. of Pennsylvania, 12 Pa. 391, the Pennsylvania Supreme Court failed to discover any error in a holding that the proofs might be read in evidence, to show a compliance with the rule as to proofs. It was afterwards held by the same court, however, that, since only the identification of the proofs was for the jury, the proofs should not be submitted nor read to them further than necessary for that purpose.

The rule is laid down in Klein v. Franklin Ins. Co., 13 Pa. 247; Com-
monwealth Ins. Co. v. Sennett, 41 Pa. 161; Kittanning Ins. Co. v.
O'Neill, 110 Pa. 548, 1 Atl. 592; Cummins v. German-American
Ins. Co., 192 Pa. 359, 43 Atl. 1016; Rosenberg v. Fireman's Fund
Ins. Co., 209 Pa. 336, 58 Atl. 671.

The Washington court, in Hennessy v. Niagara Fire Ins. Co., 8 Wash. 91, 35 Pac. 585, 40 Am. St. Rep. 892, seems to intimate the same doctrine. The California court, on the other hand, held that it was not prejudicial error to permit plaintiff to read in evidence his affidavit, making proof of the loss, when he has testified fully as to the facts within his knowledge, and when the effect of such evidence was expressly limited by the court to showing that he had made the affidavit (Menk v. Home Mut. Ins. Co., 76 Cal. 50, 14 Pac. 837, 18 Pac. 117, 9 Am. St. Rep. 158).

The materiality of a question asked insured on his examination by the company, as to how much was paid for the insured property, has been held so dependent on other circumstances as to constitute a question of fact rather than of law, and therefore one as to which the Court of Appeals would not disturb the finding of the trial court (Porter v. Traders' Ins. Co., 164 N. Y. 504, 58 N. E. 641, 52 L. R. A. 424, affirming 53 N. Y. Supp. 1112, 33 App. Div. 628).

(f) Trial and review. Trial

An instruction that to find for plaintiff there must be a finding that he gave defendant notice of the fire and of the loss thereunder, as required by the terms of the policy, is not objectionable as disregarding the necessity of proof accompanying the notice, as required by the policy (Eiseman v. Hawkeye Ins. Co., 74 Iowa, 11, 36 N. W. 780).

While a finding in special interrogatories that no proofs were delivered, has been held not fatal to a verdict in favor of plaintiff, on the ground that there may have been a waiver (Phoenix Ins. Co. v. Rowe, 117 Ind. 202, 20 N. E. 122); yet it has also been held that special findings upon which the verdict is based must contain a finding of the giving of notice as required by the policy, and not mere evidence thereof (Germania Fire Ins. Co. v. Columbia Encaustic Tile Co., 11 Ind. App. 385, 39 N. E. 304). And where the pleadings raised the issue whether proper proofs of loss were made, the fact that proof may have been waived by a plea that the value of the property destroyed had never been ascertained in the proper manner did not justify the court in taking the issue from the jury (Wilson v. Commercial Union Ins. Co., 89 N. W. 649, 15 S. D. 322).

Though evidence offered proves more in relation to the notice and proofs of loss than is needed to sustain plaintiff's action, yet, if it is not harmful to defendant, its introduction will not constitute reversible error.

Hagan v. Merchants' & Bankers' Ins. Co., 81 Iowa, 321, 46 N. W. 1114, 25 Am. St. Rep. 493; Heusinkveld v. St. Paul Fire & Marine Ins. Co., 106 Iowa, 229, 76 N. W. 696.

Nor will an instruction in relation to an excuse for failure to furnish proofs justify reversal, where the proofs were in fact sufficient (Humboldt Fire Ins. Co. v. Mears, 1 Penny. [Pa.] 513).

Objections to the sufficiency of the proofs (Graves v. Washington Marine Ins. Co., 12 Allen [Mass.] 391), or to the form of pleadings in relation thereto (Hartford Fire Ins. Co. v. Enoch [Ark.] 77 S. W. 899), should be taken in the trial court, or they will not be available on appeal.