In the plaintiff's motion for rehearing it is claimed that, while defendant alleged in its answer that the failure to guard the machine in question was the cause of the injury for which plaintiff was held liable in the damage suit of Florence Behrns against the plaintiff herein, there is no proof of such allegation. The proof, however, is contained in the pleadings and judgment in such case. Such pleadings disclose that the sole ground of negligence complained of was the failure to guard the machine as required by law, and the verdict and judgment in that case must be held to have been responsive to that issue.
Another point is that instruction C criticized in the main opinion predicates waiver on undisputed facts *Page 325 and therefore the question of waiver is one of law only and the instruction is correct. Cases are cited — as for instance, Myers v. Maryland Casualty Co., 123 Mo. App. 1. c. 687, 101 S.W. 124 — holding that where the facts are undisputed and leave no room for divergence of opinion as to the force and effect of the same in establishing a waiver, the question is one of law only. That, however, is not this case. There is grave doubt in the present case whether or not the proven facts do not fail to show a waiver as a matter of law rather than the converse. In Murch Brothers Construction Co. v. Fidelity and Casualty Co., 190 Mo. App. 490,176 S.W. 399, the court held that, so long as there is a probability, if not a possibility, of the plaintiff in the damage suit recovering on a ground of liability covered by the indemnity policy, the insurer is not only justified in taking charge of the litigation but can withdraw therefrom only at its peril. In that case the injured party claimed damages on a ground of liability covered by the policy and on a ground not so covered, and the court held that so long as there remained in the case a ground of liability covered by the indemnity policy the insurer could withdraw from the defense of the case only at its peril. In the present case, the plaintiff herein (defendant in the damage suit of Florence Behrns) then and here insisted that it had fully complied as far as is possible with the policy requirement as to placing a guard on the machinery and that its liability, if any, to the injured party must be placed on other grounds. While defendant may have readily discovered, as plaintiff now claims, to its own satisfaction at least that plaintiff's failure to place a guard on the machinery was the cause of the accident and exempted it from liability, yet it may be seriously contended that the defendant insurer, notwithstanding its belief in that respect, could not know in advance of the bringing of the damage suit on what ground of negligence the injured party might assert liability and produce evidence to sustain the same. Not only did the defendant have *Page 326 the right before withdrawing from the defense of the damage suit to make such investigation as was reasonably necessary to determine if the accident was covered by the policy, but it had a right to stay in the defense and negotiate for a compromise settlement so long as there was any reasonable ground to apprehend that a claim of liability could or would be made on any ground covered by the policy. [Buffalo Steel Co. v. Aetna Life Ins. Co., 136 N.Y. Supp. 977, 984.] Since an insurer in this form of policy can refuse to defend an action for damages only at its peril, it ought not to be held to have waived its rights by defending so long as any peril exists. Where there is or may be different grounds of liability asserted for some of which the insurer is liable and for some of which the insured must stand the loss, then it would seem that neither party can exclude the other from participating in the defense (Buffalo Steel Co. v. Aetna Life Ins. Co., supra; Chicago-Coulterville Coal Co. v. Fidelity Casualty Co. of N.Y., 130 Fed. 957, 960), but that question is not before us. *Page 445