the verdict of the jury must be for the de- case of Rokės v. Amazon Insurance Co., 51 fendant. Md. 512, 34 Am. Rep. 323, this court held that proofs of loss are required for the benefit of and may be waived by the insurer, and that it is not "necessary to prove an express agreement to waive," but that "it may be inferred from the acts and conduct of the insurer inconsistent with an intention to insist upon the strict performance of the con 3. At the request of the defendant, the court instructs the jury that with respect to the $1,200 policy offered in evidence, the same contained a warranty that the insured premises should be occupied by a family during the life of the policy (except that 10 days' vacancy was permitted), and that by the uncontradicted evidence the insured proper-dition." Judge Page, in Hartford Fire Ins. ty was not occupied by a family for a period of more than 10 days preceding the fire; and that there is no evidence in this case legally sufficient to show any waiver by the defendant of this warranty, and that therefore there is no evidence in this case legally sufficient to entitle the plaintiff to recover against this defendant on said $1,200 policy. 4. The defendant prays the court to instruct the jury that under the pleadings there is no evidence in this case legally sufficient to show any value of the plaintiff's interest in the property destroyed by fire, and for the damage to which this suit is brought, and that therefore the jury can award the plaintiff only nominal damages. The court rejected the first, third and fourth prayers, but granted the second prayer, instructing the jury that there was no evidence legally sufficient to show a waiver by the defendant of the provision of the policies requiring the plaintiff to furnish proofs of loss. The verdict and judgment were accordingly in favor of the defendant, and from that judgment this appeal was taken. The first important question to be considered relates to the granting of that instruction. It is conceded that the plaintiff did not furnish proofs of loss, and that, under the terms of the policies, unless there was evidence of a waiver of the provisions requiring him to do so, there was no error in the court's ruling. Co. v. Keating, 86 Md. 149, 38 Atl. 29, 32, It is said in 13 Am. & Eng. Ency. of Law, 345 (2d Ed.) that “a great variety of acts and circumstances have been held to constitute waiver of the terms and conditions of policies as to proofs of loss, but these may be brought together under three general heads, namely: First, acts, conduct, or statements of the insurer or those representing it by which the insured is induced not to make proofs or to believe that they are not required or will not be insisted on; second, acts or conduct of the insurer or its representatives recognizing its liability and showing an intention not to require proofs or to It is not necessary to refer to the many dispense with them; third, acts or conduct cases in this state and elsewhere for illustramaking it apparent that the furnishing of tions of the application of the doctrine. The proofs would be an unnecessary formality rule is well settled, and the question of waivand nugatory." It is also said that the waiver in any case must depend upon the facts er may be "by a general agent, and adjuster and circumstances of that case. The provior special agent of the insurer for adjusting sions relating to proofs of loss are, as has the loss or like losses, or another agent of been stated, inserted in the policy for the the insurer acting within the apparent scope exclusive benefit of the insurer, in order that of his authority." 13 Am. & Eng. Ency. of it may be informed of the nature, character, Law, 350 (2d Ed.); 19 Cyc. 859, 860. In the and extent of the loss, and while the insurer may stand on its contract and exact compli- | ture; Mr. Bond told me as he went out, he ance with its terms, there is no reason why these provisions may not be waived by it. The business in which insurance companies are engaged is one in which the security and protection of the insured are largely intrusted to the honesty and fairness of the insurer, and this court has frequently said that good faith demands of them "frank and open dealing with their policy holders." Any acts or conduct of the insurer, or its representative, that are, under the circumstances, calculated to mislead the insured and to induce him to believe that performance of the condition will not be required, or that proofs of loss would be ineffectual and nugatory, will, if he is thereby mislead, amount to a waiver. said, 'You will hear from me.'" The appellant further testified that neither Mr. Bond nor Mr. Deming said anything to him "about making up written proofs about the houses." When asked, "When was the next time you saw Mr. Bond?" appellant replied: "It was about eight days afterwards. Me and my wife went to the German Fire Insurance Company and from there they told us we should go to Mr. Deming. As we came into Mr. Deming's office Mr. Bond was in there, but Mr. Bond did not give me any chance to talk with him. Once he saw me and my wife and went out of the door." He stated that the next time he saw Mr. Bond was at the fire marshal's office, and when asked how he happened to be in the fire marshal's Turning to the facts in the case, we find, office, he said: "The deputy fire marshal in addition to what has already been stated, came up there and he ordered me down to his that the fire which caused the loss sought to office and I made a statement to him, and one be recovered in this case was first discovered day I went to the mail and there was a letter by the appellant and his wife while on their there to John Backhaus from the state fire way home from Cross Street Market, between marshal to come up to his office. As I came 12 and 1 o'clock Saturday night, January 18, ❘ up there they found out they had the wrong 1908. The houses and their contents, except man; that letter was intended for my son. the foundations and the furniture, etc., on the And as I was sitting there Mr. Deming he first floor of appellant's dwelling, were com- came, and Mr. Bond came out and asked me pletely destroyed. The appellant sent his son a lot of questions about the fire; asked how to notify the insurance companies, and on far the houses were finished, and the state the second day after the fire Dr. Brooks, the fire marshal he ordered me out of the door agent of the appellee from whom the poli- and he says, 'Step out a minute.' Mr. Demcies in this case were obtained, Mr. Bond, the ing went out before that. Then the fire maradjuster for the appellee and the Germania shal came and he said, 'You can tell your Fire Insurance Company, and Mr. Deming, son to come up to-morrow morning about 11 the adjuster for the German Insurance Com- o'clock,' and I said, 'All right.' But I did not pany, went to the scene of the fire and ask- go away, I waited in the corridor and wanted ed for the appellant, but he was not at home. to talk with Mr. Bond. Mr. Bond came out They measured the foundations of the houses and I asked Mr. Bond, I said, 'What are and questioned the appellant's son. Mr. Bond you going to do about my insurance? and he asked him where he was at the time of the told me again, he said, 'I cannot do a thing; fire, "how near the houses were finished," and you will hear from me; I cannot do a thing.'" if the shutters were on the houses. After Appellant stated further that Mr. Bond asktalking to some of the people in the neigh-ed him in the fire marshal's office if he knew borhood, they told the appellant's son to tell his father to come to Mr. Deming's office the next day. On his way home from Baltimore the appellant met Mr. Bond, Dr. Brooks, and Mr. Deming returning to Baltimore, and Mr. Bond and Mr. Deming told him to meet them at Mr. Deming's office the next day. He accordingly went to Mr. Deming's office and there met Mr. Deming, Mr. Bond, and Mr. Deming's son. In reply to the question, "What took place there?" the appellant said: "They asked me how I discovered the fire and I told them all about it; that I came from town with my wife; and they asked me how far the houses were finished and I told them, and how much those houses would cost to finish them, and all those questions that Mr. Bond asked me. He asked me who made the concrete foundations, and I told him I did, with two or three men to help me; and he told me I had made a good job of it. And then Mr. Deming told about the shavings and a barrel; "how it was the doors and shutters were in his dwelling;" if he had left the barrel in one of the houses with shavings in it, and if he had refused to let people in the stables to take the horse out, and that after this conversation with Mr. Bond, he waited to hear from him, and "about 14 days after I waited and waited and didn't hear anything from Mr. Bond or from anybody, I went up to the German Fire Insurance Company again, and the German Fire Insurance Company sent me to Mr. Deming, and Mr. Deming, he was not ready for me then; and I went in to Mr. Bondright in Mr. Bond's office. While I came in there Mr. Bond was sitting at the telephone and I asked him again and he says: 'I have just been telephoning to Mr. Deming, and I am going to see Mr. Deming tomorrow and we will let you know.'" The appellant did not hear anything further from Mr. Bond until he received the following Backhaus, Baltimore, Maryland-Dear Sir: |der the policies. He was directed by the The Caledonian Insurance Company instructs | adjusters, after they had visited the scene of me that it admits no liability under its policy the fire, to meet them at Mr. Deming's ofNo. 1,776,827, and hereby tenders you the re- fice; he met them there, and after they had turn of the full amount of premium paid there- discussed the loss, Mr. Deming told him to on, being the sum of twelve 00/100 dollars, make out a list of the furniture destroyed, which find enclosed. Please receipt for same and Mr. Bond told him he would hear from on this letter and return to me. Yours truly, him. He was then required, at the instance Thomas E. Bond, adjuster Caledonian Insur- of Mr. Bond, to make a statement under ance Company. Baltimore, April 6, 1908." oath to the fire marshal. Having thus fur"Mr. John Backhaus, Baltimore, Maryland-nished the defendant's adjuster all the inforDear Sir: The Caledonian Insurance Com- mation that was required by the terms of pany instructs me that it admits no liability the policies, knowing that he was suspected under its policy No. 1,643,483, and hereby ten- of having set fire to the property, when Mr. ders you the return of the full amount of Bond again told him at the fire marshal's premium paid thereon, being the sum of office that he would hear from him, he had seven 50/100 dollars, which find enclosed. every reason to believe that nothing more Please receipt for same on this letter and re- would be required of him, and that he had turn to me. Yours truly, Thomas E. Bond, only to wait until the company concluded to adjuster Caledonian Insurance Company." either settle the loss or deny liability. Under such circumstances, it cannot be said that there is no evidence of a waiver by the insurer of a condition in the contract, the only object of which was to enable it to secure information concerning the nature, character, and extent of the loss. Farmers' Fire Ins. Co. v. Baker, 94 Md. 555, 51 Atl. 184. The rule that an unqualified denial of liability by an insurance company within the 60 days allowed for filing proofs of loss will constitute a waiver is not denied by counsel for the appellee. For the same reason, any other statement or conduct of the insurer within the 60 days that is calculated to mislead the insured and to induce him to believe that proofs of loss will not be required will, if acted on by the insured, have the same effect. Mr. Hutton, the deputy fire marshal, testified that at the request of Mr. Bond he made an investigation of the burning of the appellant's houses; that he talked with a number of people; that he examined the appellant under oath on the 25th January, 1908, and that his questions and the appellant's answers were written down; that "Mr. Bond was thoroughly conversant with everything"; that he, Mr. Bond, read over the statement of the appellant "the same day or the next day after it was taken," and was in the fire marshal's office "almost daily relative to the matter." This statement is set out in the record, and not only contains all the information required to be furnished by proofs of loss, but the questions asked the appellant clearly indicate that he was under the suspicion of having set fire to the property. There is also evidence tend- Since the argument of this case, our ating to show that according to a general cus- tention has been called to the decision, Febtom the adjuster furnishes the insured with ruary 1, 1910, of the United States Circuit blank proofs of loss, unless he determines Court of Appeals in the case of John Bakhaus not to pay the loss, in which event all dis- and wife v. Germania Fire Insurance Co., 176 cussion and negotiations with the insured Fed. 879. In that case the court was dealing cease. This evidence was stricken out on with an entirely different question. There motion of the defendant; but we think it the policy was void at the time of the fire was admissible, not for the purpose of impos-under the provision prohibiting other insuring on the insurer an additional obligation, ance, and the court, applying the rule of the or because the failure of an adjuster to furnish the blanks in accordance with such a custom as the evidence disclosed would, standing alone, amount to a waiver, but in connection with other evidence in the case, as reflecting upon the question whether the conduct of the insurer, or its agent, under the circumstances, induced the insurer to believe that proofs of loss would not be required. federal courts that the doctrine of waiver "can only be invoked where the conduct of the companies has been such as to induce action in reliance upon it, and where it would operate as a fraud upon the assured, if they were afterwards allowed to disavow their conduct and enforce the conditions," held that the conduct of the adjuster, after the fire and after the forfeiture of the policy, did not amount to a waiver of the condiFrom this statement of the facts in the tion. In the opinion delivered by Judge case it is apparent that there was error in Brawley, the court referring to the statethe instruction granted. The conduct of the ment of the adjuster to the insured, “You adjuster, under the circumstances of this will hear from me," says: "If this had been case, could have led the plaintiff to but one said after the discovery of the over insurconclusion, namely: That proofs of loss were ance and before the fire, it might have been not required, and that the company would argued with some plausibility by the insured either pay the loss or deny all liability un-that: If you had notified me of the com pany's intention to insist upon the forfeiture, it would have been in my power to protect myself by other insurance, and it might be claimed that the insured was misled to his prejudice into believing that the company, with full knowledge of the fact, would not insist upon the forfeiture." In the case at bar, at the time of the alleged waiver, there had been no forfeiture of the policies, and the reasoning of Judge Brawley, as applied to the question with which we are dealing, does not seem to be in conflict with the views we have expressed. The policies were issued to the appellant alone, and it appears from the evidence in the case that the property belonged to the appellant and his wife as tenants by the entireties, and that at the time the policies were issued there was a mortgage on the property for $350. The appellee contends that the policies were therefore void, under the conditions requiring the insured to be the unconditional and sole owner, and his interest to be truly stated in the policy; while the appellant insists that these provisions were waived or modified by the riders making the loss payable to the assured "as interest may appear." There can be no doubt as to the meaning or object of these provisions. It is of importance for the insurer to be informed of the nature and extent of the insured's interest, in order that it may judge of the character of the risk. In the case of Bowman v. Franklin Fire Ins. Co., 40 Md. 620, Judge Alvey says that "the great purpose of all such provisions in policies of insurance is to enable the insurer to determine the extent of the risk, and the nature and extent of the interest of the insured in the premises." In In the case of Dakin v. Liverpool, London & Globe Insurance Company, 77 N. Y. 600, the policy contained conditions avoiding the policy if the interest of the insured was not truly stated therein, or other than unconditional and sole ownership, and the policy was issued to the insured "as interest may appear," and the court held, quoting from the syllabus, that "where to the name of the insured, in a policy of fire insurance, are added the words, 'as interest may appear,' this indicates uncertainty not only as to the extent, but as to the quality or character of the interest; the use of the phrase authorizes the insured, in case of loss, to show what his interest was; and the policy has the same effect as if the facts as to the interest, as subsequently shown, were inserted in the policy. If, therefore, it thus appears that the insured, although not the owner, had an insurable interest, there is no breach of a condition of the policy forfeiting it in case the interest of the insured is not truly stated in the policy, or, if the interest is less than absolute ownership, and it is not so represented in the policy." It is said in 19 Cyc. 699: “If a policy is made payable to a designated person 'as his interest may appear,' there is no necessity for a specific statement as to the payee's interest; the policy amounting to a waiver of such a requirement. But this does not excuse a breach of condition as to statements of title on the part of the insured; the payee not being regarded as such, nor the insurer as charged with notice of the nature of the payee's interest." Agricultural 30 L. R. A. 633, 51 Am. St. Rep. 457. Ins. Co. v. Hamilton, 82 Md. 88, 33 Atl. 429, where the loss is made payable to a third It is therefore clear upon authority that person "as his interest may appear," the conwaived, but where the policy is issued to the ditions of the policy referred to are not insured "as his interest may appear," they are waived. Keeping in view the object of these provisions, it would seem equally clear upon reason that where the loss is made payable to the assured "as his interest may appear," that the interest referred to is the Richards on Insurance, § 237, the author says: "The policy not infrequently insures one or more persons 'as interest, may ap pear.' It is sometimes convenient to use this phrase where the interests are shifting or uncertain; for example, where owner and creditors or lienors desire protection by one policy, or where the owner has died and the vesting of interests may be ill defined, or contingent and for a time, perhaps, unrepresented by an executor or administra-interest of the assured in the property, and tor, or where owner and tenant require se curity under the same insurance, or where vendor and vendee wish to be covered during a pending contract of sale in part performed. In considering the application and effect of the phrase a clear distinction must be observed between the frequent use of the words 'as interest may appear' in con-tradiction to say to the assured. "Your policy nection with the names of the assured, and the frequent use of the same words in connection with any third party named in the policy, as a mere payee or appointee to receive the insurance money. In the latter instance the payee takes only what the assured is entitled to receive, and if the assured has broken a warranty the payee gets that the intention of the parties to the contract was to protect that interest, whatever it might be. The assured cannot be treated as an assignee of the policy or appointee to receive the amount of loss. His interest in the amount of loss is derived from his interest in the property, and it would be a con will be void if your interest is 'other than unconditional and sole ownership,' or is not truly stated in the policy; but the loss will be payable to you as your interest may appear." We fully concur in the view of the learned court below that this provision of the rider would be meaningless, unless it amounts to a waiver of the conditions re ty in the minds of the parties to the con- erred. Moses v. Allen, 91 Md. 42, 46 Atl. tract as to the nature and extent of the in- 323; Fisher v. Diehl, 94 Md. 112, 50 Atl. sured's interest in the property, and that 432; Bowman v. Little, 101 Md. 273, 61 Atl. the agreement was that, in case of loss, the 223, 657, 1084. What we have just said apinsured should receive the benefits of the plies also to the rulings on the demurrers to policies according to his interest in the prop- the first replications to the eighth and ninth erty. This construction affords ample pro- pleas in the second case. These replications tection to the insurer, and gives effect to a were held bad for duplicity, and the plaintiff contract that would otherwise have been void then filed additional or amended replications at the time it was executed. Hagan v. Scot- setting up, in different forms, the same mattish Ins. Co., 186 U. S. 423, 22 Sup. Ct. 862, ters in reply to the pleas. 46 L. Ed. 1229. The fifth plea in the first case and the sixth plea in the second case (the two cases having been consolidated after the pleas, replications, and rejoinders, etc., were filed) assert the proposition that the policies were void under the provision requiring the interest of the assured to be truly stated in the policy, because it was not stated in the policy that the property belonged to the insured and his wife; while in the eighth plea in the first case and the thirteenth plea in the second case the defendant relies on that provision and also the sole ownership clause, and charges that the policies were void because they were issued to the insured alone, whereas the property was owned by the insured and his wife. By its seventh plea in the first case and its twelfth plea in the second case the defendant set up the defense that the policies were void, under the provision requiring the insured's interest to be stated therein, by reason of the undisclosed mortgage, to which the plaintiff replied that the existence of the mortgage "was not a material fact or circumstance to the risk of this insurance." The court below overruled plaintiff's demurrers to the fifth, sixth, eighth, and thirteenth pleas referred to, and sustained the demurrers to the replications to said seventh and twelfth pleas, but as we have already decided that these conditions of the policies were waived by the riders, making the loss payable to the "assured as interest may appear," it is not necessary to pass on the questions raised by the demurrers to these pleas and replications. Nor is it necessary to review the rulings of the court below, sustaining the demurrers to plaintiff's first replications to defendant's third and fourth pleas in each case. In those pleas the defendant relied on the failure of the plaintiff to furnish proofs of loss, and the plaintiff replied that the defendant had waived the provision requiring him to do so. The court below sustained the demurrers on the ground that the replications were prolix and argumentative, and the plaintiff then filed additional or amended replications alleging waiver of proofs of loss, on which is sues were joined. Where a demurrer to a plea or replication is sustained, and the pleader gets the full benefit of his defense or reply in an additional or amended plea or replication, he is not prejudiced by the ruling on a demurrer, even if the court We find no error in the rulings in the first, second, and third bills of exception. Section 8 of article 50 of the Code of 1904 provides that "where two or more actions or obligations conditioned for the payment of any money or two or more actions on the case arising ex contractu by and between the same plaintiff and the same defendant shall be brought at the same term, the court in which such actions are pending shall, on motion of the defendant, order the said actions to be consolidated and when consolidated shall direct the clerk to tax the cost of but one action." The plaintiff was asked by his counsel if he had ever read his policies, and the question being objected to, the witness was then asked: "Prior to the receipt of these letters of April 6, 1908, state whether or not you knew that it was necessary for you to make out any further formal proofs of loss," and the second exception is to the refusal of the court to permit the question to be answered. A party cannot profit by his own neglect, and, in the absence of fraud or mistake, the plaintiff was bound by the terms of his contract, whether he was familiar with them or not. In Hartford Fire Ins. Co. v. Keating, supra, the court said: "The law assumes that parties understood the words they have used, and therefore unless there are potential reasons to the contrary, they are bound by the legitimate and usual meaning of the phrases they employ." court to allow the plaintiff on re-examination The third exception is to the refusal of the to answer the following question: "Will you state whether or not, just before you went to see Mr. Rosenbush, you had received any notice from anybody that the Caledonian was going to refuse to pay these policies?" We do not see the object of this question. The plaintiff went to see Mr. Rosenbush just before he received the letters from Mr. Bond, and long after the 60 days had elapsed and after the alleged waiver of the proofs of loss, and the fact that he then received the same information that he received a few days later by the letters from Mr. Bond would have been immaterial. It was not necessary for him to account for his going to see Mr. Rosenbush. Whether he went because he had been told that the defendant would not pay the loss, or because he had not heard from Mr. Bond, was not important. After having waited, under the circumstances, as long as he did without hearing from Mr |