requirements as to proofs of injury. Had the defense been based on a forfeiture of the policy, the court said, it would have been inconsistent to have relied on a clause in the policy, and the Dierks Case would have governed. In Home Fire Ins. Co. v. Decker, 75 N. W. 841, 55 Neb. 346, also, it was held, that a defense based on incendiarism was not inconsistent with a defense that sufficient proofs were not furnished, and that the action was commenced too soon after the service of what purported to be proofs. And in Omaha Fire Ins. Co. v. Hildebrand, 54 Neb. 306, 74 N. W. 589, the decision that there was a waiver seems rather based on the idea that the law will not require a useless thing; the court pointing out that, if the policy was not in force when the loss occurred, the proofs would have been useless. It might be noted in passing that the Nebraska cases considered seem to leave out of account McCann v. Ætna Ins. Co., 3 Neb. 198, where the court said: "It is true the defendants plead other defenses [than failure to produce. proofs] in their answer, but that does not relieve the plaintiffs from esthe the performance of the conditions precedent." In Kentucky, also, the reason for the holding, as expressed in Lancashire Ins. Co. v. Monroe, 101 Ky. 12, 39 S. W. 434, and Kenton Ins. Co. v. Wiggenton, 10 Ky. Law Rep. 587, seems to have been the futility of a compliance if the policy was not in force. But in Home Ins. Co. v. Gaddis, 3 Ky. Law Rep. 159, the reason given. was that the company had violated its contract by refusing to pay, and that this was true though the refusal was in the answer. The company having violated its contract, plaintiff could not be held to a compliance with his. In Colorado the decision is based upon the Dierks Case, and in South Carolina it was merely a cumulative remark, supported neither by discussion nor citation of authority. Helvetia Swiss Fire Ins. Co. v. Edward P. Allis Co., 11 Colo. App. 264, 53 Pac. 242; McBryde v. South Carolina Mut. Ins. Co., 55 S. C. 589, 33 S. E. 729, 74 Am. St. Rep. 769. In connection with the cases holding that a waiver will arise from a denial of liability in the answer, the able, though unavailing, argument of Marshall, J., in Dezell v. Fidelity & Casualty Co., 75 S. W. 1102, 176 Mo. 253, should also be noted. In that case he took the position, not only that waiver of proofs might be founded on the doctrine that the law will not require a useless thing, but that the whole theory of waiver by denial of liability, at least when the denial is coupled with a demand for proofs, rested on that doctrine alone. Obviously, in such case, it could not rest on intention nor on estoppel. The insured could not have been misled into a belief that proofs would not be required, when he was expressly informed that they were expected. The contention that though the proofs would have been useless, yet the company had a contractual right thereto, is not available in view of the fact that the courts had based a waiver of the right on its mere uselessness without regard to either intention or estoppel. It is evident that the doctrine of waiver by a denial of liability on other grounds in the pleadings is entirely at variance with the theory that the action of the company must have been such as might fairly have misled the insured. Accordingly, in Kansas, Minnesota, and Ohio, where the courts adhere to the latter theory, the claim of a waiver by denial in the answer has been rather briefly dismissed. Westchester Fire Ins. Co. v. Coverdale, 9 Kan. App. 651, 58 Pac. 1029; Lane v. St. Paul Fire & Marine Ins. Co., 50 Minn. 227, 52 N. W. 649, 17 L. R. A. 197; Farmers' Ins. Co. v. Frick, 29 Ohio St. 466, reversing (sub silentio) Merchants' Ins. Co. v. Frick, 2 Am. Law Rec. 336, 5 Ohio Dec. (reprint) 47. In Iowa, also, the rule is said to be that acts or omissions relied on as a waiver of proofs should take place before action is brought, if not before the time has expired within which the insured has a right, under the terms of the contract, to supply the proofs (Smith v. State Ins. Co., 64 Iowa, 716, 21 N. W. 145). And in New York, though, as already noted, the courts admit waiver by denial of liability after the stipulated time, it has been held that, "if the plaintiff had not a complete cause of action against the defendant when the summons was served, no obstacles have been removed from her path by the denials in defendant's answer of the allegations of her complaint." Hicks v. British America Assur. Co., 162 N. Y. 284, 56 N. E. 743, 48 The prevailing opinion in Dezell v. Fidelity & Casualty Co., 176 Mo. 253, 75 S. W. 1102, also proceeds on the theory that waiver of proofs by denial of liability has always been founded either on estoppel or intention, and that on neither ground can a waiver arise from a denial of liability in an answer, in connection with which there is also a claim that the proofs were not furnished in time. 15. WAIVER OF DEFECTS IN NOTICE OR PROOFS BY (a) Failure to object in general. (b) Failure to make specific objection. (c) Nature of waiver by failure to object as related to waiver of delay in furnishing proofs. (d) Effect of failure to object as dependent on duration of silence. (a) Failure to object in general. Receiving and retaining notice or proofs of loss, without objecting to any defects therein, is a waiver of the objection. Reference to the following cases is deemed sufficient: Petit v. Ger- Reference may also be made to the following life and accident cases: hone, 56 Miss. 180; Peacock v. New York Life Ins. Co., 14 N. Y. Super. Ct. 338; Braymer v. Commercial Mut. Acc. Co., 199 Pa. 259, 48 Atl. 972.1 The same principle applies to the failure of a reinsurer to object to the proofs furnished by the reinsured. Cashau v. Northwestern Nat. Ins. Co., 5 Fed. Cas. 270; Ex parte Norwood, 18 Fed. Cas. 452. It is obvious that the company's silence will not waive any defect. of which it was ignorant. People's Bank v. Ætna Ins. Co., 74 Fed. 507, 20 C. C. A. 630, 42 U. S. The contention of the company in Winnesheik Ins. Co. v. Schueller, 60 Ill. 465, seems to have been based on this principle. The policy provided for proofs, and also for a personal examination at the option of the insurer. The company contended that this examination was such a part of the proofs that a waiver of defects in the written proof, by failure to object, extended only to matters not to be covered by the examination. This contention is apparently based on the theory that the company could not be said to have waived defects which it had a right to expect to be elsewhere covered. The court, however, held that the proofs and the examination were not so connected, and that, if the company desired the information to be derived from an examination, it should have demanded it within the time limited. It is evident that the rule as to waiver by acquiescence is in many instances nearly allied to the doctrine involved in cases holding the notice or proof furnished to have been sufficient. The difference. between a holding that any defect in proofs was waived by their acceptance and retention by the company, and a holding that the proofs furnished were sufficient, as shown by their acceptance and retention, must often be very slight. Phenix Ins. Co. v. Hart, 112 Ga. 765, 38 S. E. 67; Herron v. Peoria St. Rep. 268; Young v. Ohio Farmers' Ins. Co., 92 Mich. 68, 52 1 See, also, Cent. Dig. vol. 28, "Insurance," col. 2285, § 1393. (Pa.) 345; Killips v. Putnam Fire Ins. Co., 28 Wis. 472, 9 Am. Rep. 506. See, also, Northwestern Benev. Soc. v. Dudley, 27 Ind. App. 327, 61 N. E. 207 (a life insurance case). Especially is this true where the requirements of the policy as to notice and proofs are indefinite. Casbau v. Northwestern Nat. Ins. Co., 5 Fed. Cas. 270; Heath v. In- Where the requirement of the policy is for "satisfactory" proofs, no distinction between the two principles can be traced. Phenix Ins. Co. v. Lewis, 63 Ill. App. 228. The same rule holds as to The rule as to a waiver of defects in the notice or proofs, by a failure of the company to object thereto, does not extend to an entire failure to furnish proofs. Harrison v. German-American Fire Ins. Co. (C. C.) 67 Fed. 577; Ervay v. Fire Ass'n of Philadelphia, 119 Iowa, 304, 93 N. W. 290. And this will be true though it is provided by statute that a mere delay in the presentation of proofs "shall be waived if the insurer omitted to make objection promptly" thereto (Johnson v. Dakota Fire & Marine Ins. Co., 1 N. D. 167, 45 N. W. 799). Nor will the failure of the company to notify the insured that a mere notice of loss will not be accepted as a compliance with a requirement for particular proofs amount to a waiver of such proofs. Central City Ins. Co. v. Oates, 86 Ala. 558, 6 South. 83, 11 Am. St. Rep. 67; Kirkman v. Farmers' Ins. Co., 90 Iowa, 457, 57 N. W. But the fact that a document containing all the particulars of the loss was labeled a "notice" of loss will not prevent a waiver as to 2 Comp. Laws N. D. § 4179. |