Joseph P. Bradley

“ The preliminary proof of loss or death required by a policy is intended for the security of the insurers in paying the amount insured. If they refuse to pay at all, and base their refusal upon some distinct ground, without reference to the want or defect of the preliminary proof, the occasion for it ceases, and it will be deemed to be waived. And this can work no prejudice to the insurers, for in an action on the policy the plaintiff would be obliged to prove the death of the person whose life was insured, whether the preliminary proofs were exhibited or not. ”

“ If, when that was done, the agents of the company repudiated all liability, and informed the parties that the policy had lapsed, then no proof of loss was required by them, and the failure to file it cannot alter the case.' We think that there was no error in this instruction. The weight of authority is in favor of the rule that a distinct denial of liability and refusal to pay on the ground that there is no contract, or that there is no liability, is a waiver of the condition requiring proof of the loss or death. ”

“ Such, we think, was the clear purport of the condition, and, as the court below took a different view, holding that the insurance company was bound not only to present the draft for payment, but to have it protested for non-payment before a forfeiture of the policy would ensue, the judgment must be reversed. What might have been the result had the bill of a stranger been taken in payment of the premium, is a different question which we are not now called upon to decide. ”