Appellant, having assumed control over the litigation in the case where respondent wаs plaintiff and Ethel Samuels defendant, now seeks to avoid its responsibility as insurer and to be excused from satisfying the judgment obtained against the insured by showing that with the consent of the insured it reserved to itself the right to repudiate lia
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bility. Appellant relies on the general rule which we recоgnize that an insurer may defend the insured and still reserve its defenses on the policy in regard to сoverage or forfeiture.
The trial court in its conclusions of law held that the appellant waived any defense it may have had in respect to thе timeliness of notice of the accident by appearing in the action and conduсting the same for the assured in full possession of the knowledge that no notice of the aсcident had been given by the assured according to the terms of the policy. This conclusiоn that appellant waived any defense with respect to the timeliness of notice must be affirmed. The circumstances are that the company when first notified of the claim informеd Mrs. Samuels, the insured, that it might have a policy defense but that it would proceed nevertheless to conduct investigations and to represent her. The notice given Mrs. Samuels called аttention solely to an alleged misrepresentation in securing the policy. When the nonwaiver agreement permitting appellant to’ reserve its defense was entered into a short time before the trial was begun no claim had been made as to the lack of timeliness of notice of the accident and none was then made. The conduct of appellant before its letter to’ respondent amounted to a waiver of the defense оf an untimely notice.
The evidence fails to support the claim of misrepresentation. Appellant showed no interest in any activity of Ethel Samuels which might affect the risk of insuring her until after the accident and the action against her. There having been no misleading of appellant by the insured no reason exists on which to base a ruling in appellant’s favоr in this particular. Appellant’s agent frankly admitted upon adverse examination that oсcasionally — and this was one of those occasions — they issued a policy to an аpplicant, upon an application and the payment of the premium, without regаrd “to who the risk is.” The contention, that the statement in the application that Ethel Samuels was married, resulted in misleading and deceiving appellant and prevented an inquiry as to her mоde of living must fall as a defense. It is true that a judgment of divorce was had in an action between parties of the same name several years before the insurance was securеd by Ethel Samuels and that such judgment of divorce gives rise to a presumption that such unmarried status still exists. But that presumption is overcome by another presumption growing out of the relations оf Ethel Samuels and Andrew Samuels and their general repute as man and wife, the presumption bеing that .a man and woman openly cohabiting are married.
The trial court, in holding appellant responsible notwithstanding the waiver agreement, was cоnvinced, as we are, *438 that np misrepresentation -of fact was made by the appliсant in securing the policy and that no defense now exists on that ground. As the matter now stands it would bе. neither just nor within the meaning of the contract as expressed in the application and the policy to hold that the company is relieved of its liability on any of the grounds now urged.
. By the Court. — Judgment affirmed.