
    The Farmers’ Insurance Company v. Joseph K. Frick.
    In an action against an insurance company to recover tlie amount of a fire policy, a defense on the ground that the insured failed to make and furnish the insurer with the preliminary proofs of loss in the manner and within the time required by the policy, is not waived by setting up and relying upon other defenses not inconsistent therewith.
    Motion for leave to file petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The action was brought in the superior court by Frick to recover of the insurance company the amount of a fire policy, alleging a total destruction of the property insured.
    The company set up and relied upon several separate and distinct defenses, the sixth of which was, in substance, that Frick had failed to give notice in writing of the loss and cause of the fire, and had also failed to present to the company proof of his loss by the fire, in the manner and within the time required by the terms of the policy.
    On the trial, the insurance company introduced testimony tending to sustain each of its defenses, including the sixth. In reference to this sixth defense, the court charged the jury as follows: “ The defendant can not avail itself iu ■this case of the fact that the preliminary proofs were not furnished within a reasonable time, because having gone to trial upon other grounds of defense set up in the answer, .as well as upon the ground of want of preliminary proof, it must be held to have waived its right to insist upon the want of such proof as a defense to this action, or to have estopped itself from asserting it. If it defends on that ground, it must defend on that ground alone.” This charge was excepted to and is assigned for error on this application .for leave to file a petition in error to reverse the judgment •that was rendered in favor of Frick in the court below.
    
      Matthews, Ramsey Matthews, for the motion,
    cited Und
      
      erwood v. Ins. Co., 57 N. Y. 500; Home Ins. Co. v. Lindsey, 26 Ohio St. 348 ; May on Ins. 568, sec. 465; Flanders on Ins. 523, 526; 6 Cush. 342; 34 Barb. 213; 6 Phil. 252; 3 Gill, 176.
    .7. II. § C. Bates, contra.
   By the Court.

The defendant had a right to set forth in its answer as many consistent grounds of defense as it had. If the plaintiff below had failed to make and furnish the defendant below with the preliminary proofs of loss, in the mannei and within the time required by the policy, such failure constituted a defense to the action. Home Ins. Co. v. Lindsey, 26 Ohio St. 348. By going to trial on other grounds of defense set up in the answer, as well as upon the ground of want of preliminary proof, the defendant did not waive its right to insist upon the want of such proof as a defense, there being no inconsistency between the defenses.

• Motion granted. Judgment reversed, and cause remanded for a new trial.  