On Application for Rehearing.
PER CURIAM.Counsel for appellant disclaim any contention that the agreement as to proof of loss was inoperative because not in writing. But they claim that what they said in response to the statement of plaintiff’s counsel about the agreement shows that it was not “wholeheartedly” accepted by them, but with a qualification which affected it. We have stated heretofore in this opinion what the record shows in that respect. Whether thereby defendant’s counsel meant to say that the proof was refused, or that payment was refused “because the evidence did not show an accidental injury to his eyes” is not material. It was admitted that “proof of loss was given in accordance with the policy”. When so, defendant’s refusal to accept such proof or to pay for the loss does not in any respect militate against the agreement as proof of a compliance with the policy in that respect. When that “was given in accordance with the policy,” plaintiff showed a compliance with the policy requirements, whether it is refused or not.
We have again considered the other contentions on this application, but find no cause to modify our judgment of affirmance. With a modification of the opinion as indicated, the application for rehearing should be overruled.
Opinion modified as indicated: application overruled.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur.