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other provisions of the contract, the insured may, it is held, maintain an action, though he does not furnish proofs within the time designated, provided he does furnish them at some time prior to commencing the action upon the policy. And this has been held to be true, even though the policy provides that no action can be maintained until after a full compliance with all the requirements thereof."

In Coventry v. Evans, 102 Pa. 281, it is held that the provisions in a policy prescribing a time limit within which to make proof of loss will not be construed as a ground for forfeiture when proof is not made within the prescribed time, unless it is expressly so stipulated in the policy. This rule was followed in Eureka v. Gray, 2 Ohio Cir. Ct. R. (N.S.) 265, which was affirmed in 69 Ohio St. 542, 70 N. E. 1119, without comment.

In Flatley v. Phenix Ins. Co., 95 Wis. 618, 70 N. W. 828, wherein a policy substantially the same as the one involved in this case was in question, the court said:

"Forfeitures are not favored and will not be implied, and clauses relied on as creating them are to be strictly construed. The provision that 'the sum for which this company is liable, pursuant to this policy, shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of loss have been received by this company, in accordance with the terms of the policy,' does not declare or provide for any forfeiture, or that the policy shall cease or become invalid if the proofs are not so furnished; nor does the clause prescribing that the proofs of loss shall be furnished 'within sixty days after the fire, unless such time is extended in writing by this company,' have that effect, or materially influence the question. The provision is not that the loss on the policy shall not become due and payable unless proof of loss shall be furnished within the sixty days specified, but, in substance, that 'the sum for which this company is liable, pursuant to the policy, shall not be payable until sixty days after due notice, ascertainment, estimate, and satisfactory proof of loss have been received

Opinion of the Court-Coleman, J.

by the company, in accordance with the terms of the policy.'"

In Higson v. Insurance Co., 152 N. C. 206, 67 S. E. 509, the court, in considering this question, says:

"There are no words of forfeiture annexed to the failure to file proofs of loss. The policy was written by the defendant, and will be construed most strongly against it. If it intended that the plaintiff should lose her insurance by failing to file proofs of her loss, it should have said so in plain and unambiguous language. Having failed to do so, we must construe the contract as we find it expressed in the words chosen by the defendant."

In Munson v. G. A. Ins. Co., 55 W. Va. 423, 47 S. E. 160, in which substantially the identical question here involved was determined, the court quotes approvingly from Elliott on Insurance, sec. 307, as follows:

"Where no forfeiture is provided by the contract, and the service of the proof of loss is not made a condition precedent to the liability of the company, the effect of such failure is simply to postpone the day of payment. No liability attaches to the company, however, until such proofs are furnished; but, unless otherwise provided, expressly or by fair implication, it is not important that proofs be not in fact served within the time stated in the policy."

The same view is taken in S. M. Smith Ins. Agency v. Hamilton F. I. Co., 69 W. Va. 129, 71 S. E. 194.

In Gragg v. Home Ins. Co., 90 S. W. 1045, 28 Ky. Law Rep. 988, the court says:

"The court in the case of Kenton Insurance Company v. Downs, 13 S. W. 882, 12 Ky. Law Rep. 115, had under consideration a policy with a similar provision as the one before us with reference to making and filing proofs of the loss. The defense was the failure of the insured to furnish proofs of loss within thirty days after the loss occurred. The court decided that such failure did not forfeit or bar the action, but the furnishing of the proof was a requirement to be complied with before an

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action could be maintained, unless waived by the insurer. The law does not favor forfeiture, and, as the furnishing of proofs is not expressly made a ground of forfeiture, it will not be given that effect. Conditions affecting the risk are more strictly enforced than those relating to the mode of establishing the loss."

In St. Paul F. & M. Ins. Co. v. Owens, 69 Kan. 602, 77 Pac. 544, where the only question involved was the identical one here presented, judgment in favor of the insured was affirmed. The court quotes from several authorities, and says:

"A forfeiture is never declared by courts unless it is plainly and specifically provided for in the policy. The policy involved in this case does not declare that a forfeiture shall take place if proof * * * be not made within sixty days from the date of the destruction of the property."

In Northern Assurance Co. v. Hanna, 60 Neb. 29, 82 N. W. 97, wherein the identical question here presented was before the court, it is said:

"There is no forfeiture expressly provided for, and we are not authorized to supply one by construction. Our conclusion upon this branch of the case is that the time within which proofs of loss were to be furnished is not of the essence of the contract; and that the failure to furnish such proofs within the prescribed period did not work a forfeiture of plaintiff's claim for indemnity."

The Supreme Court of Alabama, in Taber v. Royal Ins. Co., 124 Ala. 681, 26 South. 252, in disposing of this question, says:

"Provisions of this kind [as to filing proof within sixty days], to be effective as forfeitures, must be expressed as such in unmistakable terms in the contract itself."

The Supreme Court of Florida in Indian River State Bank v. Hartford Fire Ins. Co., 46 Fla. 283, 35 South. 228, says:

"The provision of the policy sued upon herein, requiring the assured to make proofs of loss within

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sixty days after the fire, does not provide that such policy shall become void, forfeited, or annulled upon a failure to furnish such proofs of loss within the prescribed time, and such is not the legal effect of said contract between the parties."

The Supreme Court of Georgia, in Southern F. I. Co. v. Knight, 111 Ga. 622, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216, quotes with approval as follows from Joyce on Insurance:

"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 other provisions of the contract, the insured may, it is held, maintain an action, though he does not furnish proofs within the time designated, provided he does furnish them at some time prior to commencing the action upon the policy. And this has been held to be true even though the policy provides that no action can be maintained until after a full compliance with all the requirements thereof."

In Connecticut F. I. Co. v. Colo. Leasing Co., 50 Colo. 424, 116 Pac. 154, Ann. Cas. 1912c, 597, it is said:

"It must be held, in accordance with what seems to be the rule under the weight of recent authority, that the failure to furnish the statement within sixty days merely postponed the time of payment to the specified time after it was furnished, and did not defeat recovery, the action having been commenced after sixty days after the statement was furnished, and within twelve months after the fire."

To the same effect, see Steele v. German Ins. Co., 93 Mich. 81, 53 N. W. 514, 18 L. R. A. 85; Com. Union A. Co. v. Shults, 37 Okl. 95, 130 Pac. 575; 19 Cyc. 844; 13 Am. & Eng. Ency. Law, 329; Joyce on Insurance, sec. 3282.

2, 3. While the contract of insurance provides for the

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rendering of a proof of loss, the latter does not, when rendered, become a part of such contract; nor is it a part of any agreement between the parties. It is a statement of one of the parties to the contract of insurance, made in attempting to comply with a provision of the contract. The insurer is not a party to the proof of loss, does not participate in the making of it, and is not bound by it, nor by any statement which may be contained in or omitted therefrom.

4. There is not a suspicion of fraud or unfair dealing in this case. One of the purposes-in fact, the chief one of requiring the proof of loss is to prevent imposition and fraud. The insurer is seeking to avail itself of a technicality. Courts are not diligent in searching for an excuse to justify a forfeiture, nor are they keen to convert a precautionary clause into one of forfeiture. Nothing will be held as contemplating a forfeiture unless that idea is clearly expressed.

We have deemed it proper to review at some length the authorities sustaining our conclusion, although the courts do not, as a rule, devote much time to a consideration of the question presented, as shown by recent opinions, the latest, so far as we are aware, being in the case of Southern Idaho v. Hartford F. I. Co., 31 Idaho, 130, 169 Pac. 616.

Certain Nevada cases are called to our attention by counsel for appellant. Suffice it to say that they are not in conflict with the view we have expressed. In fact, the point here involved was not presented in either of them.

There being nothing in the policy of insurance sued upon authorizing a forfeiture, the judgment and order appealed from are affirmed.

VOL. 44-24