(concurring).
One contention here involves the sufficiency and the waiver of the notice of the accident — such notice being required by the policy. There is no dispute as to the facts upon this contention. The accident happened in June and the earliest notice under the evidence' most favorable to appellant was shortly after the 25th of November. Obviously, this was not the immediate notice contemplated by the policy.
Appellant endeavors to avoid the situation of this lapse of time between the accident and the notice by contending that Sweetman, who caused the injury, was the only person in the company who knew that the accident occurred while he was using the automobile in company business; that none of the other officers of the Wagner Company knew that the accident had occurred while Sweetman was on company business until November 25th; and that Sweetman’s knowledge cannot be imputed to the company. The crux of this position is whether the knowledge of Sweetman was the knowledge of the company. The undisputed evidence is that Sweetman was a stockholder and a general officer in the company. As such it was, obviously, his duty to communicate knowledge as to matters of this sort to the officer of the company having insurance matters in charge unless appellant is right in his contention that the situation here is within the principle of those cases which hold that a wrongdoer cannot be expected to report his own wrong to his employer and, therefore, his knowledge cannot be imputed to the employer. I think the principle of this rule is applicable only where there is fraud or some other situation creating an opposition of interests between the employee and the employer which would naturally lead to the concealment of the fact by the employee for his own protection. Here there was no such opposition of interests between Sweetman and the Wagner Company. There was no reason, for his own protection, why Sweetman would want to conceal from the Wagner Company that the accident had occurred while he was using the automobile in company business. It seems to me the rule'has no application here.
Another contention of appellant is that the failure to give notice was waived by the denial of liability on other grounds. It is not necessary to discuss here whether to be such waiver it must occur during the period when notice could be given instead *641of thereafter. The fact seems clear to me that there was no such waiver. There can be no doubt of the rule that where liability is denied solely upon other grounds that such character of denial will operate as a waiver of notice but here there was no such denial. The denial here, while stating others grounds, also specifically stated the ground of lack of notice. It seems impossible to me to say that a party waives lack of notice in a communication wherein he expressly relies thereon simply because he denies liability on other grounds as well. A waiver can arise only from a voluntary relinquishment of a known right. Such relinquishment may be shown not only by an express waiver but by taking a position inconsistent with insistence upon the right. Here there was not only neither express waiver nor inconsistent position but an express insistence upon the right coupled with other matters not at all inharmonious therewith.
On this matter of waiver plaintiff strongly relies on American Automobile Insurance Co. v. Castle, Roper and Mathews, 8 Cir., 48 F.2d 523, in this court. The language relied upon in the opinion is “the plaintiff waived notice and proofs of loss by denying liability on other grounds.” At page 525 of 48 F.2d. This statement might mean either a sole reliance on other grounds or not. Except for the quoted statement, there is nothing in the entire opinion revealing the form of the denial of liability in that case.
Counsel for appellant calls our attention to the fact that an inspection of the record in the Castle Case reveals that the letter denying liability was based not only upon noncoverage of the loss by the policy but also upon failure to give the notice required by the policy. In so far as the factual situation, it is the same here as it was in that case. However, the issue raised here concerning waiver is different from the issue as to waiver which was considered and determined in that case.
That case was tried to the court. I have read the memorandum opinion of the trial court stating his 'views as to disposition of the case. I have read the briefs of both sides in presentation of that appeal to this court. There is not one word mentioning the effect of a waiver based on a communication denying liability for lack of notice and also for other grounds. The trial court seems to base waiver upon the pleading by the insurer in the case and not upon the letter of denial sent by the insurer. That seems the situation presented to this court.1 Since the issue here vital was not considered by this court in that case, it is no authority here.
In support of the above quotation in that case, this court cites two cases which announce merely the general doctrine and wherein, apparently, there did not arise the point of whether denial of liability should be upon other grounds solely. One of the citations (Royal Insurance Co. v. Martin, 192 U.S. 149, 24 S.Ct. 247, 48 L.Ed. 385) refers to two earlier decisions in the Supreme Court in neither of which was this exact situation shown to be before the court. The only case I have found which, apparently, dealt with this exact situation, is Citizens’ Fire Ins., Security & Land Co. v. Doll, 35 Md. 89, 101, 6 Am.Rep. 360, which supports the doctrine that to be a waiver of notice requirements in the policy the grounds of denial of liability must not include defective notice.
I think the condition of the policy requiring notice was fully effective, was not complied with, and was not waived. I express no opinion concerning the grounds for affirmance stated in the opinion by Judge GARDNER but prefer to concur in affirmance on the ground of lack of required notice — which seems clear to me.
In appellees’ (the insured) brief, after fully arguing the matter of waiver, that argument is thus summarized:
“Summarizing this branch of the argument, we submit:
“1st: As a matter of law, under the laws of Nebraska, a denial' of liability made in the pleadings is inconsistent with a defense of want of notice of loss and constitutes a waiver of notice or a waiver of defects in notice.
“2nd: The policy does not provide for forfeiture of the insurance coverage by failure to give immediate notice and the courts will .not write such a provision.
“3rd: An insurance company having by error, mistake or neglect failed to issue a written contract in conformity with the oral agreement, can not require notice of loss as to items omitted by error until the policy has been corrected.
“4th: Actual notice was immediately given to the authorized agent within the terms of the policy. Written notice was given as soon as the policy had been reformed.”