aggravation of his injuries accruing from such neglect: Railway Co. v. McManne, 70 Tex. 74; compare Brown v. Griffin, 71 Id. 654. Intoxication does not excuse a man from the exercise of that care and prudence the want of which under other circumstances would constitute contributory negligence: Missouri Pac. R'y Co. v. Evans, 71 Id. 362.

CENTRAL CITY INSURANCE COMPANY v. OATES.

[86 ALABAMA, 558.|

INSURANCE-CONDITIONS AS TO NOTICE AND PROOF OF Loss. - Stipula tions in a fire insurance policy that the insured will forthwith give notice of loss, and render a particular and sworn account of such loss, accompanied with a magistrate's certificate thereof, are conditions precedent; and satisfactory evidence of compliance with them in proper time is an essential prerequisite to recovery, unless such compliance is waived by the insurer. INSURANCE-CONDITION AS TO NOTICE OF LOSS.-Condition in a fire insurance policy that notice of loss inust be given "forthwith" means that it must be given without unnecessary delay, or with reasonable diligence, under the circumstances of each particular case. Such condition is liberally construed in favor of the assured, and strictly against the insurer.

INSURANCE-CONDITIONS-PROOF OF Loss-WAIVER. Where a fire insurance policy requires preliminary proofs of loss, and they are presented in due time, but are defective, such defects may be waived by the failure of the insurer to object to them on any ground within a reasonable time, or by putting his refusal to pay on any other specified ground than defect in proofs. INSURANCE-CONDITIONS - PROOF OF LOSS — WAIVER.

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Where a fire insurance policy requires preliminary proofs of loss, the mere silence of the insurer, or his failure to specify the non-production of such proof as an objection to the payment of the loss, cannot be construed as a waiver of the presentation of such proof, defective or otherwise. INSURANCE-PROOFS OF LOSS - WAIVER. Where a fire insurance policy exacts notice of loss forthwith, and proof of loss as soon thereafter as possible, mere notice of loss is not proof of loss, nor a waiver thereof, though proof of loss "forthwith " may answer also as notice. INSURANCE-PROOF OF LOSS - WAIVER. - Where a fire insurance policy requires that notice of loss must be given forthwith, and proofs of loss as soon thereafter as possible, and it is shown that the insurer received notice of loss, but never received the proofs of loss sent, or knew their contents and defects, if any, it cannot be contended that such proof or defects are waived.

INSURANCE PROOF OF LOSS - WAIVER. - Under a fire insurance policy requiring proofs of loss rendered at the residence of the insurer, the deposit in the post-office of a written statement of loss, sworn to and addressed to the insurer, but never received by him, is not a delivery of such proof so as to fulfill the requirements of the policy and constitute a waiver of such proofs.

Tompkins, London, and Troy, and Pettus and Pettus, for the appellant.

Jones and Falkner, contra.

SOMERVILLE, J. The policy of insurance sued on, among other conditions, requires three important steps to be taken by the assured in the event of a loss by fire: 1. He must "forthwith give notice of said loss to the company in the city of Selma "; 2. "As soon after as possible [he must] render a particular account of such loss, signed and sworn to by him," the assured, stating the origin of the fire, what other insurance he has, if any, his interest in the property, its value, and by whom and for what purpose it was occupied; 3. He must produce the certificate of the nearest disinterested magistrate that such officer has examined the circumstances of the loss, and believes that it originated without fraud, and amounted to a specified sum. These three requirements, omitting for the present all mention of others, viz.: 1. Notice of loss; 2. Sworn proof of loss; 3. Certificate of loss by a magistrate,have uniformly been held by the courts to be conditions precedent in policies of insurance like the present one, and satisfactory evidence of compliance with them in proper time has been held to be an essential prerequisite to the right of recovery by the assured, unless such compliance is waived by the insurer: Wellcome v. People's Eq. Mut. Fire Ins. Co., 2 Gray, 480; May on Insurance, secs. 460, 466; Fire Ins. Co. v. Felrath, 77 Ala. 194; 54 Am. Rep. 58.

"Forthwith," in all such policies, means without unnecessary delay, or with reasonable diligence, under the circumstances of the particular case: St. Louis Ins. Co. v. Kyle, 11 Mo. 278; 49 Am. Dec. 74. It has been held in one case that delay of eleven days, and in another of eighteen days, in giving notice of loss, is not a compliance with such a requirement, in the absence of excusatory facts explaining the delay: Trask v. State Fire and Marine Ins. Co., 29 Pa. St. 198; 72 Am. Dec. 622; Edwards v. Lycoming Ins. Co., 75 Pa. St. 380. Where the fire occurred on the 15th, and the plaintiffs, hearing of it on the 18th, gave notice by mail on the 23d, this was held to be a sufficient compliance with a condition requiring notice to be given "forthwith": New York Cent. Ins. Co. v. National Ins. Co., 20 Barb. 468. And notice given on the morning after the fire was held sufficient in Hovey v. American Mut. Ins. Co., 2 Duer, 554. The settled rule in all cases, however, is to con

strue such requirements liberally in favor of the assured, and strictly against the insurer: Piedmont & A. Ins. Co. v. Young, 58 Ala. 476; 29 Am. Rep. 770; Alabama Gold Life Ins. Co. v. Johnston, 80 Ala. 467; 60 Am. Rep. 112.

It has been held by this and other courts that where preliminary proofs of loss are presented to the insurer in due time, and they are defective in any particular, these defects may be waived in either of two modes: 1. By a failure of the insurer to object to them on any ground within a reasonable time after receipt,-in other words, by undue length of silence after presentation; or 2. By putting their refusal to pay on any other specified ground than such defect of proof. The reason is, that fair dealing entitles the assured to be apprised of such defect, so that he may have an opportunity to remedy it before it is too late: Fire Ins. Co. v. Felrath, 77 Ala. 194; 54 Am. Rep. 58; Firemen's Ins. Co. v. Crandall, 33 Ala. 9; Insurance Co. v. McDowell, 50 Ill. 120; 99 Am. Dec. 497; St. Louis Ins. Co. v. Kyle, 49 Id. 74; Commonwealth Ins. Co. v. Allen, 80 Ala. 571.

So there are cases decided by this and other courts which hold, and properly so we think, that an entire failure to make any formal proof of loss may sometimes be excused, on the principle of waiver or estoppel in pais. In Martin v. Fishing Ins. Co., 20 Pick. 389, 32 Am. Dec. 220, no evidence was offered of any preliminary proofs before bringing the action, but only of an abandonment not accepted, and a demand of payment of the loss. The insurer refused to pay the loss, solely on account of the unseaworthiness of the vessel, and in all their communications with the plaintiff made no objection to the want of proof. The court held that the refusal to pay on the ground specified was a fact from which the jury were authorized to infer a waiver of the proof of loss. On like principle, a waiver of preliminary proofs has been inferred. from a distinct refusal of the company to pay, because the assured had taken other insurance without notice, and "had in other ways acted unfairly": Charleston Ins. Co. v. Neve, 2 McMull. 237. And again, on the ground that no valid contract of insurance had ever been entered into, because incomplete at the time of the loss, no objection being made to the want of such proofs: Tayloe v. Merchants' Ins. Co., 9 How. 390; Home Ins. Co. v. Adler, 71 Ala. 518. So where the insurance company subjected the assured to a personal examination under oath, which statement he subscribed, as required

by the terms of the policy, and no demand was made for formal proofs, it was held that, upon this state of facts, the jury were authorized to find a waiver of such proofs: Badger v. Phonix Ins. Co., 49 Wis. 400. The payment by the insurer of a part of the sum agreed to be paid by the policy in case of loss has also been held a waiver of the usual preliminary proofs: Westlake v. St. Lawrence Ins. Co., 14 Barb. 206; so, the offer to pay a specified sum, accompanied by a denial of liability for some of the articles as not covered by the policy, without demand of such proofs: Commercial Fire Ins. Co. v. Allen, 80 Ala. 571.

We can find no case, however, where the mere silence of the insurer has been construed as a waiver of the presentation of preliminary proofs by the insured, where no such proofs, defective or otherwise, have been presented. The policy itself is the most solemn notification possible of the imperative prerequisite of furnishing such proofs. It is there stipulated that they must be furnished as soon as possible after the fire, and this stipulation is a standing notice of the requirement. It stands to reason that this notice need not be reiterated by the insurer, nor any special attention of the assured called to it, unless the particular circumstances of the case render it necessary to fair and honest dealing between the parties. And the authorities accordingly hold that the mere silence of the underwriter or insurer, or his failure to specify the non-production of such preliminary proofs as an objection to the payment of the loss, is not sufficient evidence to justify a jury in inferring a waiver of the production: Columbian Ins. Co. v. Lawrence, 2 Pet. 25; O'Reilly v. Guardian Ins. Co., 60 N. Y. 169; 19 Am. Rep. 151; Keenan v. Mo. State Mut. Ins. Co., 12 Iowa, 126. A like principle was applied in St. Louis Ins. Co. v. Kyle, 11 Mo. 278, 49 Am. Dec. 74, where there was a failure on the part of the insurer to object to a notice of loss when it was received too late. It was suggested by the court that it was not the duty of the company to make any formal objection to the want of notice, and whether they were silent or made objections on this ground could not alter the rights of the parties. "Such a doctrine would be in fact," it was said, "implying a new contract between the parties, from the mere inaction or silence of one party." See also Patrick v. Farmers' Ins. Co., 43 N. H. 621; 80 Am. Dec. 197.

As we have said, the contract exacts, -1. A notice of loss forthwith; and 2. Proofs of loss as soon thereafter as possible. It is manifest that mere notice of loss is not proof of such loss,

and cannot ordinarily subserve such purpose; although proof of loss, if made "forthwith," may answer not only as proof, but as notice: Wood on Insurance, sec. 428; May on Insurance, sec. 460. It has been accordingly held, in recognition of this distinction, that there might be a waiver of the notice of loss. without a waiver of the proof of loss required to be furnished: Desilver v. State Mut. Ins. Co., 38 Pa. St.. 130.

In this case there was notice of loss, but the company received no preliminary proofs. The policy required that such proofs should be rendered to the company, meaning, from the context, in the city of Selma, where the notice also was required to be given. The deposit in the post-office of a written statement of loss made out and sworn to, and addressed to the company at Selma, but never received by them, was not a delivery of such proof to them, and could not operate to fulfill the requirement of the contract that such proofs of loss should be rendered to the company at Selma: Hodgkins v. Montgomery Co. Ins. Co., 34 Barb. 213.

Waiver is necessarily a matter of mutual intention between the contracting parties in the nature of a new contract between them. In the absence of evidence that the company had ever received any proofs of loss, or knew their contents and defects, if any, it cannot be contended that such defects were waived. There can be no waiver of anything as to the existence of which one is totally ignorant: Bennecke v. Insur ance Co., 105 U. S. 355.

In Dawes v. North River Ins. Co., 7 Cow. 462, it was held that the president of an insurance company, as such, possessed no power to waive full preliminary proofs. In Queen Ins. Co. v. Young, 86 Ala. 424, it was decided that a local soliciting agent has no authority, after loss, to waive the breach of any condition in a fire insurance policy. And Patrick v. Farmers' Ins. Co., 43 N. H. 641, 80 Am. Dec. 197, is authority for the proposition that a condition in a policy of insurance requiring notice of loss to be given within thirty days is not waived by a vote of the directors of the company to indefinitely postpone the consideration of the loss, which was tantamount to a refusal to pay anything on account of it, the notice not having been given in due time.

The jury were probably justified in coming to the conclusion that the notice of loss, under all the circumstances of the case, was given in a reasonable time, and in proper mode. But there were no proofs of loss furnished, and no conduct on the