specially concurring.
I recognize no distinction, that affects the principle of ' waiver, between the several defenses pleaded in this case and the defenses pleaded in Insurance Company v. Allis Company, 11 Colo. App., 264, 53 Pac., 242, upon which that court held that the pleading of a defense to an action on a policy of insurance which places the defense on the ground that when the loss occurred the policy was not in force, was in itself a waiver of the condition requiring proof' of the loss. The rule applies with equal force to a failure to give the requisite notice of death. But my judgment does not approve that ruling. It seems to me in direct conflict with the Code provision that a defendant may set forth by answer any defense that he may have. If he may plead different defenses, even though inconsistent, he may likewise rely on them, at least to the extent that the mere pleading of one of such defenses shall not be held to waive the right to rely on the others.