PROOFS OF Loss. It is a usual condition in all policies in insurance that immediate no tice of loss shall be given by the insured, and generally some time is named within which the proofs of loss shall, be given in writing to the company. Compliance with such is a condition precedent, and notice, or waiver of it, must be shown ; Western Home Ins. Co. v. Thorp, 48 Kan. 239, 28 Pac. 991; German Ins. Co. of Freeport v. Davis, 40 Neb. 700, 59 N. W. 698; Fink v. Ins. Co., 60 Mo. App. 673; though there is a mortgage clause ; Southern Home Building & Loan Ass'n v. Ins. Co., 99 Ga. 65, 24 S. E. 396 ; but where there is such clause, a mortgagee is not required to make proofs ; Dwelling House Ins. Co. v. Trust Co., 5 Kan. App. 137, 48 Pac. 891.
Failure to make proof is not excused by refusal of the company to furnish blanks ; Coldham v. Security Co., 8 Ohio Cir. Ct. 620. A statement mailed within the time is ren dered to the company ; Manufacturers' & Merchants' Mut. Ins. Co. v. Zeitinger, 168 Ill. 286, 48 N. E. 179, 61 Am. St. Rep. 105; and notice duly addressed, stamped, and mailed is presumed to have been received, if not denied ; Phenix Ins. Co. v. Pickel, 3 Ind. App. 332, 29 N. E. 432. Where a statute requires notice "accompanied by an affidavit" of the circumstances, they need not be attached to gether or delivered at the same moment; Russell v. Ins. Co., 84 Ia. 93, 50 N. W. 546. Notice is conclusively shown when the com pany sends an adjuster ; Welsh v. Assur. Corp., 151 Pa. 607, 25 Atl. 142, 31 Am. St. Rep. 786; or telegraphs an adjuster to give it attention ; Anthony v. Ins. Co., 48 Mo. App. 65. A new proof of loss made long afterwards under promise of settlement if the claim was reduced, was mere surplusage and did not affect the rights of the insured ; McNally v. Ins. Co., 137 N. Y. 389, 33 N. E. 475 ; and where the policy required duplicate bills, vouchers, etc., it was only necessary to show reasonable effort to obtain them ; Langan v. Ins. Co., 162 Pa. 357, 29 Atl. 710.
An itemized estimate of the cost of rebuild ing is sufficient compliance with a require ment of a verified certificate of the ,value of the building destroyed ; Summerfield v. Assur. Co., 65 Fed. 292 ; contra, Heusinkveld v. Ins. Co., 96 Ia. 224, 64 N. W. 769. A false statement in the affidavit of loss, made by mistake, will not 'vitiate a policy which pro vides that it shall be void in case of any false swearing by the insured in relation to the insurance ; Knop v. Ins. Co., 107 Mich. 323, 65 N. W. 228 ; and formal defects or ir regularities which cannot be obviated will not prevent recovery ; 26 Ins. L. J. 695.
Formal or preliminary proofs may be waived by parol; American Fire Ins. Co. v. Bland (Ky.) 40 S. W. 670. A waiver of proofs results from a denial of all liability ; 2Etna Ins. Co. v. Strout, 16 Ind. App. 160,
44 N. E. 934; National Union v. Thomas, 10 App. D. C. 277 ; Dooly v. Ins. Co., 16 Wash. 155, 47 Pac. 507, 58 And. St. Rep. 26 ; or a denial on other grounds ; Standard Loan & Acc. Ins. Co. v. Thornton, 97 Tenn. 1, 40 S. W. 136 ; Jefferson v. Life Ass'n, 69 Mo. App. 126 ; Hicks v. Assur. Co., 13 App. Div. 444, 43 N. Y. Supp. 623 ; as from the defence that the policy was never in force ; "Etna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125 ; or the omission to object to the form ; German-American Ins. Co. v. Hocking, 115 Pa. 398, 8 Atl. 586 ; but they are not waived by careful investigation; People's Bank of Greenville v. Ins. Co., 74 Fed. 507, 20 C. C. A. 6M0, 42 if. S. App. 81; or by reason of an ir resistible conclusion that the company had determined to defend the suit, resulting from assertions made during the negotiations ; id.; or by an offer of compromise ; Flanaghan v. Ins. Co., 42 W. Va. 426, 26 S. E. 513 ; or by a refusal after insufficient proofs are fur nished to consider the loss unless a specified claim should be eliminated ; Rockford Ins. Co. v. Winfield, 57 Kan. 576, 47 Pac. 511 ; or by the mere denial of liability on the ground that the property destroyed was not covered ; Robinson v. Ins. Co., 90 Me. 385, 38 Atl. 320 ; Welsh v. Assur. Co., 151 Pa. 607, 25 Atl. 142, 31 Am. St. Rep. 786; Devens v. Ins. Co., 83 N. Y. 168 ; or mere silence ; Central City Ins. Co. v. Oates, 86 Ala. 558, 6 South. 83, 11 Am. St. Rep. 67 ; or a promise by local agents, without author ity to adjust, that the loss would be paid ; Welsh v. Ins. Co., 77 Ia. 376, 42 N. W. 324. The act relied on to establish a waiver must occur within the time fixed by the policy ; Bolan v. Fire Ass'n, 58 Mo. App. 225. The insured does not lose the benefit of a waiver by making proofs, and he may plead both compliance and the waiver ; Warshawky v. Ins. Co., 98 Ia. 221, 67 N. W. 237.
The proofs should ordinarily be made by the insured, but where he is not in a posi tion to make them in person, they may be made by an agent ; Lumbermen's Mut. Ins. Co. v. Bell, 166 Ill. 400, 45 N. E. 130, 57 Am.
St. Rep. 140 ; or mortgagee to whom the policy is made payable; Armstrong v. Ins. Co., 56 Hun 399, 9 N. Y. Supp. 873; or the company's adjuster ; Phceuix Ins. Co. of Brooklyn v. Perry, 131 Ind. 572, 30 N. E. 637 ; and they may be in the name of a firm; Karelson v. Fire Office, 122 N. Y. 545, 25 N. E. 921. Where the policy requires proofs "as sooft as possible," what, is reasonable time is a mixed question of law and fact; Ameri can Fire Ins. Co. v. Hazen, 110 Pa. 530, 1 Atl. 605 ; Miller v. Ins. Co., 70 Ia. 704, 29 N. W. 411.