Concurring. — I concur in the conclusion reached in the foregoing opinion upon the last ground stated therein.
By the policy of insurance upon which respondent relies, appellant agreed “to indemnify the person, firm or corporation named in the statement numbered 1 of the said schedule and herein called the assured, against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death suffered through the assured’s negligence, and as a result of an accident occurring while the policy is in force.” By this provision there must be a concurrence of negligence on the part of the employer, and an accident, resulting in injury or death, in order to fix a liability under the policy. The injury set out in the complaint resulted from an accident but there is no showing that there was any concurring negligence' on the part of *402respondent. Appellant, therefore, contends that it is not liable under the terms of the policy.
The Workmen’s Compensation Act provides that an eimployer shall be liable for personal injury by accident (C. S., see. 6217) without concurring negligence (G. S., sec. 6214). The policy was not broad enough to cover employer’s liability under this law.
Apparently, in order that there might not be any misunderstanding, appellant caused to be stamped upon the policy the following indorsement: “This policy does not cover the liability of the assured under any workmen’s compensation agreement, plan or law, unless otherwise endorsed.” Upon being notified of an injury to an employee arising under the workmen’s compensation law, appellant promptly disclaimed liability, stating that, the policy had been canceled .December 31, 1917, the day before the workmen’s compensation law took effect. Appellant, however, did not see fit to stand on this ground. Subsequently, with knowledge that respondent was claiming a liability on its part arising under the workmen’s compensation law, that is, liability for injuries resulting from an accident without negligence, it demanded of respondent and received from him and retained the full estimated amount of the premium for the entire period called for by the policy. By so doing, it must be held to have waived the provision of the contract requiring that injuries must be caused by the negligence of respondent, and to have elected to, treat the policy as valid under the workmen’s compensation law and to have recognized its liability in cases of injury occurring as a result of an accident only.
McCarthy, Dunn and Lee, JJ., concur in' the concurring opinion.