The substance of the doctrine of waiver as applied in the law of insurance is, that if the insurer, with knowledge of facts which would bar an existing primary liability, recognizes such primary liability by treating the policy as in force, he will not thereafter be allowed to plead such facts to avoid his primary liability. Washburn, Adm'r, v. Union Central Life Insurance Co., 143 Ala. 485, 38 So. 1011; American Ins. Co. v. Millican, 228 Ala. 357, 153 So. 454.
This doctrine, however, cannot be invoked by the insured to create such primary liability. To create such primary liability all the elements of a binding contract are essential. Belt Automobile Indemnity Ass'n v. Ensley Transfer Supply Co.,211 Ala. 84, 99 So. 787; Great American Ins. Co. v. Dover et al.,219 Ala. 530, 122 So. 658; American Ins. Co. v. Millican, supra.
The relation of the insured and insurer terminated when the plaintiff's relation as employee of the Republic Iron Steel Company terminated, destroying the basis for the primary liability essential to the plaintiff's right of action, and the first paragraph of the letter relied on as the waiver asserts the cancellation of the policy prior to the filing of proof.
Application overruled.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.