Flatley v. Phenix Insurance, 95 Wis. 618

Flatley v. Phenix Insurance

95 Wis. 618 | Wis. | 1897

PiNNey, J.

There is no substantial difference between the provisions of the policy upon which this action is founded, in respect to the defense relied on, and the provisions in the case of Vangindertaelen v. Phenix Ins. Co. 82 Wis. 112-117. The policy must be regarded as depending, for its validity and construction, wholly upon the consent of the parties, and not as a policy prescribed by the authority of the state, under ch. 195, Laws of 1891, the provisions of which were declared unconstitutional in Dowling v. Lancashire Ins. Co. 92 Wis. 63. The courts will not declare or raise a forfeiture of an insurance policy by implication, and where, as in this case, numerous grounds of invalidity or forfeiture are clearly specified as such in the policy, it is not fairly permissible, as a matter of construction, to accord to a mere breach of a stipulation contained in the policy the effect imputed to it by the defendant in its defense. As it did not- see fit to exact a stipulation of invalidity or forfeiture in case of a breach of the stipulation, and exacted it as to very many other matters, the conclusion is an entirely justifiable one tha¡t it was not intended that any such consequence should flow from its breach, but that,the defendant intended to rely on such other remedy as the law might afford. Coventry M. L. S. Ins. Asso. v. Evans, 102 Pa. St. 281-284.

*621Failure to furnish proof of loss within sixty days after the fire would not operate as a forfeiture of the policy, nor defeat a recovery by the assured. This was held in the case of Vangindertaelen v. Phenix Ins. Co. 82 Wis. 112, decided previous to the decision in the case of Quinlan v. Providence-Washington Ins. Co. 133 N. Y. 356, relied on by the defendant, and in which a contrary conclusion was reached. The view adopted by this court had prevailed in Kenton Ins. Co. v. Downs, 90 Ky. 236; Tubbs v. Dwelling-house Ins. Co. 84 Mich. 646, and Coventry M. L. S. Ins. Asso. v. Evans, 102 Pa. St. 281; and to it we still adhere. 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 aud payable unless proof of loss shall be furnished within the sixty days specified, but, in substance, that “ the sum for which this company is Halle, pursuant to the policy, shall not le payable until sixty days after due notice, ascertainment, estimate, and satisfactory proof of loss have been received by the company, in accordance with the terms of the. policy.” The delay in furnishing the proofs until October 8, 1895, merely operated to postpone the maturity of the claim until sixty days thereafter. For these reasons, judgment was properly given for the plaintiff.

By the Court.— The judgment of the circuit court is affirmed.