OTERO V. MARYLAND' CASUALTY COMPANY.

The Supreme Court of Oklahoma, i North British and Mercantile ins. Co. vs. Lucky Strike Oil Co., 173 Pac. 847, has made a similar ruling:
The general denial, in the answer required the plaintiff, as a condition precedent to recovery, to offer evidence of proof of loss being made as required by the terms of the policy, or a waiver of such proof, and the plaintiff having failed to offer any evidence whatever tending to show that the proof of loss was made within 60 days after the occurrence of the fire as required by- the terms of the policy, or that such proof had been waived, the evidence fails to sustain the cause of action, and the demurrer to the evidence and the motion for an instructed verdict were well taken, and the court committed reversible error in overruling the demurrer to the evidence and likewise the motion for an instructed verdict, as the making of proof of loss was not waived by the answer setting up other grounds as a defense to the action, or in denying liability upon the contract of insurance; it not being shown that such denial of liability was made within 60 days after the fire occurred.
In Palatine Ins. Co. vs. Lynn, 42 OkI. 486, 141 Pac. 1167, it is held:
(I) In an action on a fire insurance policy, which provides that in case of loss the insured will give immediate notice to the insurer, and within 60 days thereafter furnish proofs of loss, testimony that such proofs of loss were furnished is necessary in order to establish a cause of action, unless the making of such proof of loss has been waived by the insurer.
(2) A waiver of proofs of loss might be pleaded in the petition in order that the evidence thereof may be admissible at the trial. Such proofs are not waived by an answer setting up other grounds as a defense to the action.
(3) Where it is alleged in the petition that proofs of loss were furnished as provided in the policy, these allegations are put in issue by a general denial in the answer, and if at the trial no evidence is offered that such proofs have been furnished, there is a failure of proof, and a demurrer to the evidence is well taken on the ground that the testimony is not sufficient to support a judgment against the insurer, and the motion for an instructed verdict is likewise well taken.
The holding in Palatine Ins. Co. vs. Lynn, supra, finds support in Westchester Ins. Co. vs. Coverdale, 9 Kan. App. 651, 58 Pac. 1029; Smith vs. State Ins. Co., 64 Iowa 716, 21 N. W. 154; Lane vs. St. Paul Fire & Marine Ins. Co., 50 Minn. 227, 52 N. W. 649, 17 L. R. A. 197.
There is no evidence tending to show that the defendant within 60 days after the fire occurred denied liability, and it is not so pleaded in the petition, or proved by evidence, and therefore the waiver of proof of loss by such denial is not shown, and there being no evidence that proof of loss was made, or waived, within the time prescribed by the policy, the plaintiff failed to make out its case.
In St. Paul Fire Ins. Co. vs. Mittendorf, 34 Old. 651, 104 Pac. 354, 28 L. R. A. (N. S.) 651, it is held:
In an action on an insurance policy, the plaintiff must allege and prove a compliance with the conditions precedent in the policy, or a waiver thereof.
In construing the provisions of an insurance policy containing a clause similar to the one in this policy the District Court of Louisiana, Gauche vs. London & Lancaster Ins. Co., 10 Fed. 349, used these words:
Their meaning is that the assured's right of action shall not be exercised until there has taken place both the delivery of satisfactory proofs and the passage of 60 days thereafter. The assured, therefore, can in no case maintain an action