delivered the opinion of the Court:
This аction was brought on a policy of insurance issued by the Germania Fire Insurance Company to J. Young Scammon. The property covered by the policy was totally destroyed by fire on the 14th day of July, 1874. Notice of the loss was served on the local agent of the company on the 5th of August next thereafter, and by him transmitted to the office of the company, located in the city of New York. “Proofs of loss” were delivered to the local agent at Chicago on the 23d day of April, 1875, and the same were by him transmitted to the general agent of the company at New York. It is not proven the “proofs of loss” reached the principal оffice of the company before the 10th of May, 1875. Under the date of the 12th of May, 1875, the general agent acknowledged the receipt at his office of thе “proofs of loss,” and notified the assured “they were furnished too late.” In case of loss, assured was obligated by a clause in the policy to “forthwith give notice of said loss to the companies, through their general agent in the city of New York, and as soon after as possible render a particular account оf such loss. ” The defence in the court below was placed mainly on the ground there had been no compliance by the assured with this clause of the policy. As respects the “notice of loss, ” whether it was given in apt time or not need not be considered, as there is another objection insisted upon that is fatal tо any recovery in the present case.
When “proofs of loss, ” which the assured was obligated to furnish, were delivered to the agent of the companies in Nеw York, objection was promptly made, and the assured notified “they were furnished too late.” That raises the distinct question whether the proofs of loss in this case wеre furnished in time by assured to constitute a compliance with his insurance contract. The argument made is not inconsistent with the proposition there must be what is equivаlent to a compliance with the provision of the policy requiring proofs of loss to be made, whatever that provision may mean, by furnishing proofs of loss to the company, before any action can be maintained on the policy; but the position is taken with a view to avoid the force of the provision, “proofs of loss” must be furnished as soon after the loss “as possible.” The clause of the policy requiring sworn proofs of loss is not introduced into the policy as а condition, or if there be an implied condition, the consequence of a non-observance is expressly stated, viz: the loss shall not be payable until such рroofs are made, but not that the policy shall for that reason be forfeited, and hence it is insisted, as assured had one year from the time of loss within which to bring his aсtion, to avail of which, and yet give the insurer' sixty days’ notice before suit is brought, proofs of loss, under the policy, may be furnished to the company within ten months of the time of the loss. The argument on this branch of the case has for its support much that is ingenious, but it admits of' an answer warranted by a reasonable construction of the policy. Whether that clause of the policy requiring sworn proofs of loss to be made as soon after the loss “as possible,” shall be regarded as a condition, the non-observance of which would work a forfeiture or not, it is a part of the insurance contract, and there must be - what is an equivalent with a complianсe with it before any action can be maintained upon the policy. A declaration on a policy having such a clause must contain an averment of compliance with its provisions, and proof must be made as to the same on the trial. Accordingly, in one count of the declaration in this case of the loss sustained it is averred “plaintiff forthwith gave notice to defendant in writing, and as soon as possible thereafter, to-wit, on the same day, delivered to the defendant а partienlar account thereof; ” and in an amended count it is averred, when the loss occurred “plaintiff forthwith gave notice to the defendant in writing, * * * and delivered to said defendant a particular account thereof. ” Had these averments been omitted, obviously the declaration would have been bad on dеmurrer, unless it had been averred the performance of these acts had been waived by defendant.
What will be regarded as a compliance with the provisions of a policy containing the words, “in case of loss assured shall forthwith give notice of said loss, * * * and as soon after as possible render a particular account of such loss, ” is often a question involved in much difficulty. Bach particular case is determined by the attending circumstances which distinguish it from other cases. Thаt which would be regarded as a compliance with such a provision in a policy under some circumstances, under others might not be so regarded. This fact accounts, in a large measure, for the contrariety of decisions on this question. In this State, at least, the meaning of the words “forthwith,” and “as soon after as possible, ” when employed in an insurance contract, as they are used in the policy declared on, has been definitely determined by previous decisions. They are understood to mean within “a reasonable time,” “without unreasonable delay,” and are the equivalent of “due diligence.” Hence this rule, deducible from adjudged eаses, is, if the act to be done is required to be “forthwith, ” or “as soon as possible, ” or “immediately, ” proof it were done with “due diligence,” under the circumstances, аnd “without unreasonable delay, ” will be deemed sufficient proof it were done in apt time. Peoria M. and F. Ins. Co. v. Lewis,
Construing the evidеnce most favorably for plaintiff, even under the liberal doctrine of the cases cited, it can not be insisted, with any show of reason, the “proofs of loss” were furnished within any “reasonable time, ” or “without any unreasonable delay. ” If the delay suffered to intervene the loss and making proofs in this case would not bar the actiоn on the policy under the circumstances proven, it would be difficult to conceive of a ease where delay in making “proofs of loss” would operate as a bar to the action. No attempt was made to furnish the company with proofs of loss until after the lapse of nine months from the time of loss, and no еxcuse is shown by the evidence that even tends to justify the delay. It is not claimed plaintiff was lulled to non-action by anything any officer or agent of the company did оr said concerning “proofs of loss.” No waiver of the terms of the policy in this regard is insisted upon. Indeed, assured had no communication with any agent of the cоmpany on the subject, although the office of the local agent was near the office occupied by assured. Evidence appearing in this recоrd, by stipulation, shows the proofs of loss were in fact made out within ten days after the loss occurred, and could have been served at any time, had assured elected to do so. The fact he was embarrassed by threatened proceedings in bankruptcy constitutes no valid excuse. No receiver had been appointed, and it was plainly the duty of assured to make proofs of the loss sustained. Where no circumstances are proven that justify the delay suffered to intervеne, to hold that proofs of loss furnished nine months after the loss were furnished “as soon as possible, ” would be to extend the rule further than is warranted by the authorities.
The findings of the courts whence this cause comes were warranted both by the law and the evidence, and the judgment will be affirmed.
T . , Judgment affirmed.
I can not concur in this decision.
The policy nowhere provides that а failure to make proofs as soon as possible shall defeat a recovery. The penalty for such neglect is found in the provisions that payment for the loss can not be demanded until sixty days after proof of loss.