21 Sup. Ct. 532, 181 U. S. 49, 45 L. Ed. 741; Union Mut. Life Ins. Co. v. Payne, 105 Fed. 172, 45 C. C. A. 193; Spencer v. Citizens' Mut. Life Ins. Ass'n, 23 N. Y. Supp. 179, 3 Misc. Rep. 458. That evidence of this nature has no special probative force is implied, also, in Modern Woodmen of America v. Davis, 184 Ill. 236, 56 N. E. 300, affirming 84 Ill. App. 439, where an error in not admitting a physician's certificate contained in the proofs was held cured by the subsequent admission of the testimony of the physician to the same effect as the rejected certificate. 11. WAIVER OF NOTICE AND PROOF OF LOSS, DEATH, (a) What may be waived. (b) Nature of waiver-Waiver by estoppel. (c) Same-Waiver by election or intention. (d) Time of waiver. (e) Effect of waiver. (f) Who may take advantage of waiver. (a) What may be waived. Provisions in the policy as to notice and proofs of loss are inserted for the benefit of the company, and the production of such documents, or any defects therein, may be waived by the company. This principle is elementary, is never disputed, and is implied in all cases dealing with the subject. The following cases may, however, be useful as containing a direct statement of the rule: Perry v. Faneuil Hall Ins. Co. (C. C.) 11 Fed. 482; Bennett v. Maryland Reference may also be made to the following life and accident insurance cases: Hurt v. Employers' Liability Assur. Corp. (C. C.) 122 Fed. 828; Berry v. Mobile Life Ins. Co., 3 Fed. Cas. 288; Nationa Masonic Acc. Ass'n v. McBride, 162 Ind. 379, 70 N. E. 483; Green field v. Massachusetts Mut. Life Ins. Co., 47 N. Y. 430. Though there may be a question as to the power of mutual companies to waive conditions and provisions going to the validity of the contract, they can certainly waive those provisions the object of which is to establish the amount of the loss after it has occurred. Priest v. Citizens' Mut. Fire Ins. Co., 3 Allen (Mass.) 602; Little v. Phoenix Ins. Co., 123 Mass. 380, 25 Am. Rep. 96; Lewis v. Monmouth Mut. Fire Ins. Co., 52 Me. 492. (b) Nature of waiver-Waiver by estoppel. The question as to the exact nature of waiver of notice or proofs of loss has been the subject of much discussion. That the waiver may arise from and be founded upon an estoppel is so elementary as to need no citation of authorities. But as to whether or not an implied waiver must either be supported by a consideration or based upon estoppel, the authorities are in hopeless confusion. No case seems ever to have arisen in which the necessity of a consideration to support an express waiver has been fairly raised and decided. But in numerous cases the question has arisen as to whether an implied waiver must be founded upon an estoppel. Generally, this question has arisen from, or is a part of, the further question as to whether a waiver can be founded upon acts of the company, occurring after the expiration of the time stipulated for furnishing proofs, but indicating an intention not to object to the failure of notice or proofs, or to defects therein. Obviously, under such circumstances, the insured cannot claim to have been misled into not complying with the policy, for his opportunity to do so had already passed. And accordingly, in Kansas, Maine, Minnesota, Mississippi, New Hampshire, Oregon, Pennsylvania, and Wisconsin it has been held, in effect, that there can be no waiver under such or similar circumstances. Burlington Ins. Co. v. Ross, 48 Kan. 228, 29 Pac. 469; State Ins. Co. v. 197; Weidert v. State Ins. Co., 19 Or. 261, 24 Pac. 242, 20 Am. St. Rep. 809; Trask v. State Fire & Marine Ins. Co., 29 Pa. 198, 72 Am. Dec. 622; Gould v. Dwelling House Ins. Co., 134 Pa. 570, 19 Atl. 793, 19 Am. St. Rep. 717; Welsh v. London Assur. Corp., 151 Pa. 607, 25 Atl. 142, 31 Am. St. Rep. 786; Carey v. Allemania Fire Ins. Co., 171 Pa. 204, 33 Atl. 185; Sparrow v. Universal Fire Ins. Co., 17 Phila. (Pa.) 329; Cornell v. Milwaukee Mut. Fire Ins. Co., 18 Wis. 387; Engebretson v. Hekla Fire Ins. Co., 58 Wis. 301, 17 N. W. 5; Hart v. Trustees of Supreme Lodge of Fraternal Alliance, 108 Wis. 490, 84 N. W. 851. But in connection with the Pennsylvania cases cited see Weiss v. American Fire Ins. Co., 148 Pa. 349, 23 Atl. 991, Fritz v. Quaker City Mut. Fire Ins. Co. (Pa.) 26 Atl. 14, and Rice v. Palatine Ins. Co., 17 Pa. Super. Ct. 261, in which it would seem that the waiver was founded on the intention of the company, rather than on estoppel, but in which no particular attention is called to the distinction. And in connection with the Wisconsin cases see O'Conner v. Hartford Fire Ins. Co., 31 Wis. 160, Palmer v. St. Paul Fire & Marine Ins. Co., 44 Wis. 201, and Badger v. Glens Falls Ins. Co., 49 Wis. 389, 5 N. W. 845, where the rule is stated in a much broader form. These cases, as best exemplified, perhaps, in Robinson v. Pennsylvania Fire Ins. Co., 90 Me. 385, 38 Atl. 320, or Gould v. Dwelling House Ins. Co., 134 Pa. 570, 19 Atl. 793, 19 Am. St, Rep. 717, do not expressly deny that waiver may arise from the intention of the company to waive, but proceed on the theory that, unless the insured has been misled to his injury by acts indicating such an intention, no waiver will arise therefrom; in other words, that the waiver must either be express or founded on estoppel. This doctrine seems, also, to prevail in Georgia, Illinois, Iowa, Nebraska, Ohio, Texas, Vermont, and in some of the federal circuit courts. Williams v. Queen's Ins. Co. (C. C.) 39 Fed. 167; Unthank v. Travelers' Ins. Co., 28 Fed. Cas. 824 (an accident insurance case); Ex parte Norwood, 18 Fed. Cas. 452; Phenix Ins. Co. v. Searles, 100 Ga. 97, 27 S. E. 779; Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Dwelling House Ins. Co. v. Jones, 47 Ill. App. 261; Smith v. State Ins. Co., 64 Iowa, 716, 21 N. W. 145; German Ins. Co. v. Davis, 40 Neb. 700, 59 N. W. 698; Coldham v. Pacific Mut. Life Ins. Co., 2 Ohio S. & C. P. Dec. 314 (a life insurance case); Sun Mut. Ins. Co. v. Mattingly, 77 Tex. 162, 13 S. W. 1016; Employers' Liability Assur. Corp. v. Rochelle, 13 Tex. Civ. App. 232, 35 S. W. 869 (a life case); Donahue v. Windsor County Mut. Fire Ins. Co., 56 Vt. 374; Findeisen v. Metropole Fire Ins. Co., 57 Vt. 520. In the cases cited from Georgia, Illinois, Nebraska, Ohio, and Vermont, however, the discussion is so meager that it is difficult to definitely state the ground of the decision. In the Sun Mutual Case, cited from the Supreme Court of Texas, the decision was made by way of dictum, and in the Employers' Liability Case, from the Court of Civil Appeals, the decision does not seem conclusive of the question. In the Iowa case the decision was tentative, rather than absolute. And in the Unthank and Norwood Cases (28 Fed. Cas. 824, and 18 Fed. Cas. 452), though lack of good faith was stated to be the ground of waiver, yet the insured could not have been injured by the act of the company relied on, since in the one the time for furnishing the notice had already elapsed, and in the other the objection was that the proofs, already furnished when the alleged estoppel occurred, were too late. In connection with the Nebraska case should be noted the doctrine obtaining in that state as to waiver of proofs by a denial of liability on other grounds on the trial of the case. Obviously, this doctrine is not founded upon estoppel, but for a fuller discussion reference is made to the brief treating of denial of liability. And see, also, Western Home Ins. Co. v. Richardson, 40 Neb. 1, 58 N. W. 597. In Massachusetts the question seems never to have been squarely raised, but it is believed that there is no case in which that court has held the notice or proofs waived, in which there has not also been present in some form the elements of estoppel. Reference may be made to Blake v. Mutual Ins. Co., 12 Gray (Mass.) (c) Same-Waiver by election or intention. On the other hand, it has been held in Indiana, Maryland, and New York that estoppel is not a necessary element of waiver. Germania Fire Ins. Co. v. Pitcher, 160 Ind. 392, 64 N. E. 921; Germania Reference may also be made to the following life insurance cases: 1 See post, p. 3531. ion of Miller, J.); Prentice v. Knickerbocker Life Ins. Co., 77 N. Y. 483, 33 Am. Rep. 651, affirming 43 N. Y. Super. Ct. 352; Brink v. Guaranty Mut. Acc. Ass'n, 55 Hun, 606, 7 N. Y. Supp. 847, affirmed without opinion 29 N. E. 1035, 130 N. Y. 675; Reynolds v. Equitable Acc. Ass'n, 1 N. Y. Supp. 738, 59 Hun, 13; McElroy v. John Hancock Mut. Life Ins. Co., 88 Md. 137, 41 Atl. 112, 71 Am. St. Rep. 400. In connection with the Indiana cases cited, see the accident case of Standard Life & Accident Ins. Co. v. Strong, 13 Ind. App. 315, 41 N. E. 604, and the burglary insurance case of Fidelity & Casualty Co. v. Sanders, 32 Ind. App. 448, 70 N. E. 167. Reference should also be made to Edwards v. Baltimore Fire Ins. Co., 3 Gill (Md.) 176. In connection with the New York cases, see Blossom v. Lycoming Fire Ins. Co., 64 N. Y. 162, expressing doubt as to the doctrine, and the opinion of Earl, J., in Underwood v. Farmers' Joint Stock Ins. Co., 57 N. Y. 500. See, also, Bennett v. Lycoming County Mut. Ins. Co., 67 N. Y. 274; Brink v. Hanover Fire Ins. Co., 70 N. Y. 593; Bell v. Lycoming Fire Ins. Co., 19 Hun (N. Y.) 238; Brown v. London Assur. Corp., 40 Hun (N. Y.) 101; McDermott v. Lycoming Fire Ins. Co., 44 N. Y. Super. Ct. 221. While New York has undoubtedly been the leading state in the pronouncement of this doctrine, yet the case of Germania Fire Ins. Co. v. Pitcher, 160 Ind. 392, 64 N. E. 921, best illustrates the argument on which it is founded. In that case a question arose as to a waiver by a denial of liability by the company, occurring after the time for furnishing the proof had expired. The court, after pointing out that no estoppel would arise in such a case, nevertheless decided that the jury might infer a waiver. Implied waiver, the court said, may be founded either on the intention of the company as shown by its acts, or on estoppel. Reliance is largely placed on Insurance Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689, where the doctrine of election was held applicable to a forfeiture for failure to pay premiums. The company, having knowledge of a forfeiture, must elect, before it acts, whether or not it will insist thereon, and, having once acted in such a manner as to show that it does not intend to insist on the forfeiture, it cannot afterwards be heard to say that the policy had been rendered void; and this, though its acts had not resulted in an estoppel. Such, also, seems to be the doctrine in the Circuit Court of Appeals for the Eighth Circuit, in Alabama, California, Louisiana, Missouri, New Jersey, North Carolina, North Dakota, Tennessee, and possibly Michigan. Schenck v. Mercer County Mut. Fire Ins. Co.. 24 N. J. Law, 447; State |