delivered the opinion of the court:
Condition B of the policy required that upon the occurrence of an accident the insured should give immediate notice to the insurer, and upon a claim being made on account of the accident that the insured should give like notice. Condition C provided that if suit was brought to enforce the claim the insured should immediately forward to the home office of the company the summons or other process as soon as the same was served upon him. Condition B was fully satisfied. The declaration averred, and the circuit court found, that appellant waived compliance by appellee with the provisions of condition C. The Appellate Court found the same way. The question whether there was such a waiver is a mixed question of law and fact, upon which the finding of the Appellate Court is final and not here subject to review. Moerschbaecher v. Royal League, 188 Ill. 9; Coverdale v. Royal Arcanum, 199 id. 649; Ætna Life Ins. Co. v. Sanford, 200 id. 126.
No material question open to consideration in this court is presented by appellant’s assignments.
The amount of the judgment recovered was $2500. Ap-pellee assigns cross-errors, and insists that the- court erred in refusing a proposition ;of law submitted by it which reads as follows:" ■ 'L
“The court further holds as a proposition of law that the plaintiff is not limited in the amount it can recover in this case by the limitation of $2500 fixed by said policy, but the plaintiff can recover in this case the whole amount of the judgment, together with the five per cent damages assessed by the Appellate Court, and all the costs, both in the circuit and Appellate Court, in the suit of Henry Hale against the plaintiff, and also the costs in the suit subsequently brought, by said Henry Hale against the plaintiff on the appeal bond, which the plaintiff was compelled to and did pay.”
When the appellant notified the appellee that it denied liability in the matter, the appellee was under no obligation whatever to proceed further in the litigation. Thereafter appellee filed its appeal bond, and the five per cent damages mentioned in the foregoing proposition was assessed against appellee by the Appellate Court upon Hale filing in that court a short record and obtaining a dismissal of the appeal. No reasonable theory has been suggested upon which the insurer could be held liable for that five per cent. We think that appellee was entitled in this case to recover more than $2500, the bare face of the policy. No proposition of law, however, was presented by it and refused by the court stating the correct measure of damages and no proposition stating an incorrect measure was held by the court. We are therefore without power, in the present condition of the record, to enter any judgment which will enable appel-lee to recover the entire amount to which it was entitled.'
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.