Argument for Respondent

Action by Al. L. Clark against the London Assurance Corporation. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Affirmed.

Miller, Thornton, Miller & Watt and Withers & Withers, for Appellant:

The contract requires that proofs shall be furnished, and that they shall be presented within sixty days after a fire. There is no more reason for making the first than the second requirement obligatory, and it will not be contended that proofs can be entirely dispensed with. This would be making a new contract for the parties, instead of construing or interpreting the contract actually made. "We are of the opinion that the court could not set aside and ignore the plain provisions of the contract of insurance. Defendant had the right to limit its liability by the terms of the contract." Bastian v. British American, 143 Cal. 289.

Failure to present proofs of loss within the period provided for by the policy precludes the insured from making recovery under his policy. Arkansas Mill v. Clark, 105 S. W. 257; White v. Home Mutual, 128 Cal. 131; Emery v. Glenns Falls, 76 Atl. 230; Hanover v. Johnson, 57 N. E. 277; Leftwitch v. Royal, 46 Atl. 1010; Cook v. North British, 62 N. E. 1049; Gould v. Dwelling House Ins. Co., 51 N. W. 455; Shipero v. Western, 53 N. W. 463; Burgess v. Mercantile, 89 S. W. 568; Hare v. Headley, 35 Atl. 445; Peabody v. Saterlee, 52 L. R. A. 956; S. F. Savings Union v. Western, 157 Fed. 695. "A policy of insurance is a contract which must be enforced according to its terms. There is but one safe rule, and that is to take the contract as written, subtracting nothing therefrom and adding nothing thereto." Healey v. Imperial F. I. Co., 5 Nev. 268.

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McCarran, Miller & Mashburn, for Respondent: Plaintiff gave notice of loss in proper time, and that

Argument for Respondent

was sufficient. The purpose of notice is to acquaint the insurer with the fact of the loss by fire, so that investigation may be made. "To hold that a plaintiff must, as a condition upon which its right to recover depended, furnish information already well known to defendant, would be a rigid and technical construction of this provision of the policy, from a compliance with which it could receive no benefit. Such construction should not be adopted." Will & Bauer Co. v. Rochester G. I. Co., 125 N. Y. Supp. 606; Omaha F. I. Co. v. Dierks, 43 Neb. 473.

The loss was total. Where the original notice shows that the loss was total, formal proof of loss is thereby dispensed with. Joyce, Insurance, sec. 3338.

Failure to render proof of loss within sixty days after the fire is not sufficient to forfeit the policy, render it void, or prevent recovery. Joyce, Insurance, sec. 3282; Conn. F. I. Co. v. Colo. L. M. & M. Co., 50 Colo. 424; 13 Am. & Eng. Ency., 2d ed. 329; 4 Cooley's Briefs on Insurance, 3369; 1 Clement, Fire Insurance, 201.

Reasonable excuse for not making the proof of loss within the prescribed time relieves the insured from the danger of forfeiture. Leftwitch v. Royal, 46 Atl. 1010; Cook v. North British, 62 N. E. 1049.

Substantial compliance with the terms of the policy as to time of making proof of loss and the making of such proof within a reasonable time after the fire is all that is necessary; a "strict literal compliance not being necessary." Joyce, Insurance, 2d ed., sec. 3275; Miller v. Hartford F. I. Co., 70 Iowa, 704; Jefferson Realty Co. v. Employers L. A. Corp., 149 Ky. 741; Etna L. I. Co. v. Bethel, 140 Ky. 608; Barker v. Phoenix I. Co., 5 Am. Dec. 339; Padget v. North Carolina H. I. Co., 98 S. C. 244; National Union F. I. Co. v. Burkholder, 116 Va. 942.

Failure to render proof within time required by policy does not prevent recovery of insurance money in a suit, even where the policy provided that no action could be

Opinion of the Court-Coleman, J.

maintained "until after full compliance with all the foregoing requirements" of the policy. Rynalski v. Insurance Co. of Penn., 96 Mich. 395; Conn. F. I. Co. v. Colo. L. M. & M. Co., Ann. Cas. 1912c, 597; Hartford F. I. Co. v. Redding, 67 L. R. A. 418; Columbian L. I. Co. v. Miller, Ann. Cas. 1914D, 408; Maryland Casualty Co. v. Burns, 149 S. W. 867; Continental F. I. Co. v. Whitaker, 64 L. R. A. 451; Kahnweiler v. Phoenix Ins. Co., 57 Fed. 562; G. & R. Ins. Co. v. Prairie Co., 248 Fed. 452.

Rendering proof of loss within the time specified in the policy is not a condition precedent. Steele v. German Ins. Co., 18 L. R. A. 85; Phoenix Ins. Co. v. Creason, 14 Ky. L. Rep. 573; Hall v. Concordia Insurance Co., 51 N. W. 524.

Forfeitures are not favored. Mason v. St. Paul F. & M. Ins. Co., 82 Minn. 336; Clement, Fire Insurance, 201; Cooley's Briefs on Law of Insurance, 3366; 14 R. C. L. 1327; Flatley v. Phenix Ins. Co., 70 N. W. 829.

By the Court, COLEMAN, J.:

This is an action to recover upon an insurance policy the sum of $1,000, damages sustained by fire. Judgment was in favor of plaintiff, from which, and from an order denying a motion for a new trial, an appeal has been taken.

The policy sued upon is what is known as a "New York standard policy." It contains a provision to the effect that in case of loss the insured shall render to the company sworn proof thereof within sixty days after the fire. The fire occurred April 8, 1918, of which the company became aware the following day. The property insured was wholly destroyed. The company's adjuster inspected the premises April 13, and on the 14th the company was notified by letter of the fire. Sworn proof of loss was mailed to the San Francisco office of the company on the sixty-eighth day after the fire. A few days prior to the fire plaintiff had permitted a policy of

Opinion of the Court-Coleman, J.

$2,000 carried on the property to lapse for nonpayment of premium.

1. The sole defense to the action was the failure to render sworn proof of loss within sixty days after the fire. As an excuse for failure to render the sworn proof of loss within the sixty-day period, plaintiff, in reply, pleaded sickness.

There is no provision in the policy to the effect that the insured shall forfeit his rights thereunder in case proof of loss is not rendered within sixty days after a loss by fire is sustained, though it does contemplate forfeitures under certain other circumstances.

In disposing of this appeal, we deem it necessary to consider but one proposition of law. It may be said at the outset that there are two lines of authority on the question of whether or not the failure to make proof of loss within the sixty-day period bars recovery. Judge Van Fleet, in S. F. Savings Union v. Western A. Co., 157 Fed. 696 (decided in 1907), said that the courts were evenly divided on this point. Since that time, in keeping with the progressive spirit of the age, the current of authority has been strongly in favor of the rule that such a failure is not of itself sufficient to deny the right of recovery.

It is the contention of appellant that no circumstance will excuse a delay beyond the sixty-day period in rendering the proof of loss. That such a view would be a harsh one to take goes without saying. In case a building which is covered by a policy similar to the one in question should catch fire through no fault of the insured, and in an effort to extinguish the fire he should be so injured as to be rendered helpless and unconscious for more than sixty days, and a total loss should ensue, would any one except defendant say there could be no recovery?

In reply to the suggestion that the insured, who, being insane, failed to file proof of loss within the time limit stated in the policy, could not recover, it was said that

Opinion of the Court-Coleman, J.

such a proposition is too repugnant to justice and humanity to merit serious consideration (Ins. Co. v. Boykin, 12 Wall. 433, 20 L. Ed. 442); and the doctrine thus stated has been approved (Woodmen A. Assn. v. Pratt, 62 Neb. 673, 87 N. W. 546, 55 L. R. A. 291, 89 Am. St. Rep. 777; Houseman v. Home Ins. Co., 78 W. Va. 203, 88 S. E. 1048, L. R. A. 1917A, 299; Metropolitan Gas. Co. v. McAuley, 134 Ga. 165, 67 S. E. 393).

The policy sued upon contains no forfeiture clause. By its terms the company became liable when the property was consumed. To justify a reversal of the judgment, we must say that the delay in rendering the proof of loss constituted a forfeiture on the part of plaintiff of his claim for damages against the company. That forfeitures, as a general proposition, are not favored, is a well-recognized rule. The Supreme Court of Appeals of Virginia, in North B. & M. Ins. Co. v. Edmundson, 104 Va. 486, 52 S. E. 350, lays down the rule to be:

"Where 'no forfeiture is provided for in case of failure to furnish proofs, forfeitures being stipulated in case of breach of other requirements, or furnishing the proofs in the specified time is not expressly made a condition precedent to recovery, the great majority of recent decisions hold that the effect of failure to furnish them is merely to postpone the time of payment to the specified time after they are furnished." "

The Court of Appeals of Kentucky, in the case of Kenton Ins. Co. v. Downs, 90 Ky. 236, 13 S. W. 882, had under consideration the question here presented. It was held that the court would not imply a forfeiture.

In Continental F. I. Co. v. Whitaker & Dillard, 112 Tenn. 151, 79 S. W. 119, 64 L. R. A. 451, 105 Am. St. Rep. 916, the court quotes, with approval, from Joyce on Insurance, as follows:

"If a policy of insurance provides that notice and proofs of loss are to be furnished within a certain time after loss has occurred, but does not impose a forfeiture for failure to furnish them within the time prescribed, and does impose forfeiture for a failure to comply with