Kenton Insurance v. Downs

■JUDGE PRYOR

delivered the opinion of the court.

The Kenton Insurance Company, on the 26th of March, 1886, issued its policy of insurance to William *240 Downs on a two-story frame building and the household furnituré — sixteen hundred dollars on the building and two hundred dollars on the furniture. The building was burned on the 7th of March, 1887. The preliminary proofs of loss were furnished on the 16th of April, 1887, and additional proof on the 16th and 25th of May of the same year.

The judgment below was for the policy-holder, Rebecca Downs, to whom it had been assigned, and from that judgment the company has appealed.

The principal, and, in fact, the only question necessary to be considered, and the one upon which a reversal was had in the Superior Court, arises from the failure to furnish the company the proof of the loss within thirty days after the destruction of the property. It is maintained by the appellant that the provision of the policy requiring this proof to be made and furnished within thirty days is a condition precedent to the liability on the part of the company, unless there is proof showing a waiver. On the other hand, it is argued by the appellee that this requirement is a con■dition precedent to the right to institute the action. There is some discussion in the briefs of counsel in regard to the question of waiver, but as the main question, and the one decisive of this case, must be •considered, it is not deemed neeessary to determine whether or not the company waived its right to have the proof of loss within the specified time. Where notice or proofs of loss are required to be made forthwith, or within a reasonable time, which is, in effect, ■■the same, it becomes at once necessary to determine The .question of diligence on the part of the insured, *241 and if, under tlie circumstances of the particular case, lie has used reasonable diligence in furnishing his proof, it is all that should be required. (Knickerbocker Insurance Co. v. McGinnis, 87 Ill., 70 ; Phillips v. Protection Insurance Co., 14 Mo., 220 .)

The policy before us, like many others, contains stipulation after stipulation rendering the policy void, and forfeiting all claim on the part of the insured to a recovery. These stipulations are found under the heads, This company shall not be liable and General Provisions, in which we find as many as fifteen or twenty states of case in which the company is released from all liability. In this contract of insurance- the causes of forfeiture are classified, and the attention ■of the insured -called to all the causes working a forfeiture of the policy or relieving the company from all liability. The contract then proceeds to specify the manner in which the insured shall proceed in •case of loss. “Proceedings in case of loss: He shall forthwith give written notice of said loss or damage to this company, and shall, within thirty days, render a particular account of said loss or damage, signed •and sworn to by him,” &c. Under this heading it is further provided that either party may, after the proof has been furnished,, claim in writing that the difference, if any, 'shall be referred to arbitration, with the option on the part of the company to repair or rebuild the property by giving notice of its intention to do so within sixty days after the receipt of the proofs of loss. It is further provided, that tlie loss shall not be payable until sixty days after the proof -of loss has been furnished. The contract then closes *242 with the stipulation “that no suit or action for the recovery of any claim by virtue of this policy shall be commenced until after the amount of such claim has been ascertained by arbitration as provided, nor until all the conditions, provisions and requirements of this policy have been complied with by the assured ; nor shall any suit or action be sustained in any court, unless such action shall be commenced within six months next after the fire shall occur; and should any action be commenced against this company after the expiration of six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim and an absolute bar to such action.”

The peculiar verbiage of this contract, and the various classifications fixing the liability of the company, the causes of forfeiture, and the directions by which the assured is to proceed in case of loss, show conclusively the purpose of the company to postpone the right of action merely until the proof of loss is furnished, and, by a statute of limitation made part of the contract, has fixed the.period when this liability terminates. We are aware that case after case may be found involving similar questions under ordinary policies of insurance where it has been held that the failure to furnish the proof in the time required is held to be a condition precedent to all liability on the part of the company, for the reason that the company, for its own protection, should at once be permitted to investigate the cause of the fire, and have at hand every opportunity for informing itself with reference to all the facts connected with the destruction of the *243 property; but where the company, by its own contract, has prescribed the conditions upon which the contract is to end, and omits to make the failure to furnish the proof within the thirty days as a cause of forfeiture, and fixes a statute of limitation of six months, with a proviso that no action shall be commenced until the conditions of the contract have been complied with, it becomes apparent that no such construction should be placed upon the terms of the policy as would defeat the recovery on the ground alone that the proof had not been furnished within the thirty days. Such a construction would fix the statute at thirty days instead of six months, and inflict upon the assured a punishment by way of forfeiting his right to recover when, by either a strict or liberal construction of the policy, its plain meaning is that these proofs must be furnished before suit is brought, and that no action can be maintained after six months. “Conditions affecting the risk itself are more strictly enforced than those relating to the mode of establishing the loss.” (Insurance Co. v. Spiers, 87 Ky., 285 .)

In Columbia Insurance Company v. Lawrence, 10 Peters, 507 , the insured, by the terms of the policy, was required, as soon as possible after the loss, to deliver an account of the loss and damage, and further, that said loss or damage was to be paid within sixty days after notice and proof. It was held in that case that the delay was not injurious to the company, but the assured was deprived of the right to sue until the proof was procured. In Weir v. The North Counties of England Insurance Co., 4 L. R. Ir., 689, the *244 policy provided: “On the happening of any loss or damage by fire, * * * the insured is forthwith to give notice, in writing, to the company, and, within fifteen days at least, deliver to the company a particular account. * * And in default thereof no claim in respect of such loss or damage shall be payable until such notice, account, proof, * * * are given and produced.” The court held in that case that the failure to deliver the account within the fifteen days was not a condition precedent to the right of recovery. While the cases are not exactly similar, it is plain that the provision in that contract, by which no action could be maintained until the conditions in regard to proof of loss had been complied with, enlarged the time for bringing the action, and particularly when the contract created a statute of six months operating as a complete bar to the recovery. Giving, therefore, this entire contract a just and proper interpretation, it must be held that the failure to produce the proof within the thirty days worked no forfeiture of the right to recover, and the instruction to that extent was proper.

Courts have so construed contracts of insurance as to fully protect companies against imposition and fraud on the part of the assured, and have required a strict compliance with that provision of the contract requiring the proof of loss to be furnished in a specified time; but where the company, by its own contract, has interposed a statute of limitation of such short duration as' fully protects its rights in this particular, with the right to postpone the payment of the loss sixty days, which is to be included *245 in tlie computation of time when applying this statute, and in the absence of any provision forfeiting the right of recovery on such a ground as the failure to furnish the proof, .it obviates the necessity of establishing any rule in this regard, other than the contract itself, for the protection of insurance companies. The appellant has made stipulations for its. own protection, and this court will not imply a forfeiture or terminate the contract under such circumstances.

It is insisted by counsel for the appellant that although the failure to take and present the proof may not have constituted a defense to the action, still, as the proof was presented in May, 1887, and this action instituted in the month of June following, no recovery should be allowed, because the policy provides in stipulation No. 32 that the loss shall not be paid until sixty days after the proof of the loss has been furnished; that the action was premature, having been brought within thirty days after the proof had been made complete. This, defense is made alone by the brief filed, and no plea in abatement or demurrer interposed in the court below on such a ground; but, on the contrary, the appellant relied on various defenses to the action, all of which went to the merits of the controversy, and it is now too late to raise the question.

It is manifest from the testimony that the agent of the company was on the ground when the policy was issued. He knew the manner in which the buildings were used and occupied, and the representations, if false, came from the agent, and not the assured. *246 It appears that the agent charged more than is usual in ordinary risks, because a part of the building was used as a store, and the fact that there was gunpowder in the store constitutes no defense to the action, the quantity kept not being in excess of that which the policy provides that “stores” may keep.

The jury determined all the questions of fact that are now urged as grounds for a reversal, and the evidence being conflicting, we have thought proper to decide only the legal questions involved.

The judgment below is affirmed.