#### ZEB. MATTOX v. THE SEABOARD INSURANCE COMPANY.

(Filed 24 November, 1926.)

Insurance, Accident — Automobiles — Stipulations in Policy — Waiver — Evidence.

The stipulations in an accident insurance policy upon an automobile that written notice of the accident be given the insured within a certain time, or upon failure of the parties to agree as to the amount of damages, they will arbitrate, etc., are deemed waived by the insurer upon denial of liability.

Appeal from *Lane, J.,*at August Term, 1926, of UNION. Reversed.

*Vann & Millilcen for plaintiff.*

*J ohn C. Slices and J ohn M. Bohinson for defendant.*

Per Curiam.

This action was instituted by plaintiff against defendant to recover upon a certain fire insurance policy on an automobile which was destroyed by fire on 17 December, 1925. This action was instituted on 5 January, 1926.

Plaintiff offered in evidence open Policy No. D-1004 of defendant— standard policy.

Defendant relied on certain provisions of the policy: (1) Notice in writing to the company within 60 days after loss or damage, giving in detail the facts, etc. (2) In case the assured and this company shall fail to agree as to the amount of loss or damage, each shall, on the written demand of either, select a competent and disinterested appraiser, etc. (3) The loss shall in no event become payable until sixty days after the notice, ascertainment, estimate and verified proof of loss herein required have been received by this company, and if appraisal is demanded, then, not until sixty days after an award has been made by the appraisers.

Plaintiff concedes “for the purpose of this appeal that unless there is evidence to go to the jury on an issue of the defendant’s waiver of policy provisions in the respects mentioned, the judgment should be affirmed.”

It is well settled in this State that a denial of liability waives the filing of proof and the time limit fixed in the policy, within which it became payable and action might at once be instituted. *Gerringer v. Insurance Co.,*133 N. C., p. 407; *Higson v. Insurance Co.,*152 N. C., p. 206; *Moore v. Accident Assurance Corporation,*173 N. C., p. 532; *Proffitt v. Ins. Co.,*176 N. C., p. 680.

The only question involved: was there, any evidence to go to the jury as to defendant’s denial of liability? We think there was. On a motion *613to nonsuit, tbe evidence is to be taken in tbe light most favorable to plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to be drawn therefrom.

Tbe defendant, Zeb. Mattox, bad loaned tbe car in controversy to Oscar Threatt. He testified that be was going to Lancaster, S. 0., from Monroe. He did not know what caused tbe fire. Just below Waxhaw tbe lights went out and tbe car ran off tbe fill. He jumped out about tbe time it went in tbe creek and it' was on fire. He was going around tbe curve at tbe creek when tbe lights went off and be made an effort to stop, and tbe first thing be knew tbe car was going down tbe embankment.

Zeb. Mattox testified in part: That between one and two weeks after tbe fire one Mercer, a representative of defendant company, came to see him about a settlement. Proof of loss bad been filled out and sent to tbe company.

> “Q. Now, Mr. Mattox, go ahead and tell what took place between you and Mr. Mercer when be came down there. A. I carried him out tbe Jackson Highway where tbe ear was burned, and be looked it over, and be said that if tbe car run down tbe bank they wasn’t liable, and tbe car was damaged by running down tbe bank and they wasn’t liable for tbe damage to tbe car; that it was damaged by funning down tbe embankment.”

There was other testimony by plaintiff of an offer of $500 that be would not accept — offer coupled with a denial of liability.

On cross-examination:

> “A. No, sir, be commenced trying to show me where tbe car bad run down tbe bank and damaged tbe car, and be wasn’t liable for tbe car.

> “Q. What value did be place on tbe car before it was damged? You placed tbe value at $1,300? A. He didn’t place any because be said they wasn’t liable for tbe car at all.

> “Q. And that be wasn’t liable for tbe damage which bad been done by reason of it running off tbe embankment? A. Said be wasn’t liable for tbe car because it was damaged when it run off.”

Defendant in its answer says that it “did not then, never has and does not now deny that it is liable on tbe open policy,” etc.

Conceding, without deciding that this question may be raised by tbe pleadings, yet we think tbe evidence is sufficient to be submitted to a jury as to whether tbe stipulation has not been waived by tbe defendant.

Tbe judgment of nonsuit is

Eeversed.