(after stating the facts). It is urged that the instruction set out is erroneous and should not have been given because the letter herein set out from the claim adjuster denied liability because the death did not result from an accident covered by the terms of the policy. But it will be observed that this letter was written some days after the expiration of the time limited for giving notice of death, and no statement contained in this letter gives any intimation of an intention to waive that defense, nor was appellant called upon to do any act, nor to incur any expense nor to be at any trouble on account of giving notice or furnishing proofs of the death.
The mere assertion of a defense in addition to that of the failure to give notice does not deprive the insurer of that defense, if the insured is invited to incur no expense or trouble and nothing is done which influences the beneficiary to fail in the performance of that duty. This question was fully discussed in the recent case of Aetna Life Insurance Company v. Fitzgerald, 165 Ind. 317, which was a suit upon an accident policy, which provided for giving immediate notice to the company of the injury. The notice was not given, within the time limited by the policy, but when it was given the company declined to approve the claim on the ground that the injury “did not come within the classification of.an accident.” Later when the suit was brought the company set up the failure to give notice and the trial court instructed the jury that although the notice was not given within the time limited by the policy, yet if the company upon receiving the notice denied all liability and placed its denial of responsibility solely on the ground that the policy sued on did not cover such an injury as was set up in the complaint," without saying anything about the failure to have given the notice required in the policy, such fact would amount to a waiver of the provisions requiring immediate notice. In the opinion, among other things, it was said; “We can not sanction the view that, after the assured has sinned away all right of recovery under the policy, he may yet recover, by proof that the company refused to pay on the ground that the policy did not cover the claim asserted in the notice. The refusal to pay on a wholly different ground, made within the time that the policy holder may take steps to make good his right under the contract, is treated in this State as a waiver per se; but we perceive no reason, after the right is gone, for permitting the policy holder to go to the jury on the question of waiver under proof of the solitary fact that the company had afterward declined for another reason to recognize the validity of the policy. The authorities support us in this view of the law. Fidelity, etc., Co. v. Sanders, 32 Ind. App. 448, 70 N. E. Rep. 167, and cases cited; Patrick v. Farmers’ Ins. Co., 43 N. H. 621, 80 Am. Dec. 197; Beatty v. Lycoming County, Mut. Co., 66 Pa. St. 9, 5 Am. Rep. 318; Hart v. Fraternal Alliance, 108 Wis. 490, 84 N. W. Rep. 581; State Insurance Co. v. School District, 66 Kan. 77, 71 Pac. Rep. 272; Employers’ Liability Assur. Corp. v. Rochelle, 13 Tex. Civ. App. 232, 35 S. W. Rep. 869; 2 May, Insurance, 464.” We think this is the correct rule, and it accords with our own decisions when considered in connection with the facts which they discuss. Woodmen of the World v. Hall, 104 Ark. 538, and cases cited.
The instruction complained of submitted the question of waiver, although apparently there was no evidence upon which to base the instruction, and the jury by their verdict have found that no notice was given and that -there was no waiver of that requirement and evidently appellant was not prejudiced thereby, and the judgment of the court below is therefore affirmed.