Darlington v. Phœnix Mutual Fire Insurance

Per Curiam, The expression “ within forty days after notice,” contained in the application, certainly does mean after notice actually received by tlio insured. The expressions, “ within ninety days from date of notice,” contained in the application, and “ within forty days of the date of notice” and “within ninety days of the above date ” might mean within the number of days mentioned, from or after the particular date of a writing which contained notice, or it might mean, within so many days after the receipt of notice by the party to be affected. We are of opinion in this case that these expressions all mean, within so many days after the written notice sent to the insured was actually received. On the principle that doubtful words in policies of insurance are to be construed most strongly against the insurer, and in favor of the insured, this construction is fully sustained, and as the expression contained in the application does literally mean actual notice, the same meaning should be given to the other words above referred to. The jury have found that the administratrix of the insured did not receive the notice of the assessment until June 7, 1897, and therefore the policy was not forfeited when the fire occurred which was on September 1, following. We are quite clear that the right of action was in force at the time of the fire, and therefore, sustain the judgment of the learned court below. The assignments of error are all dismissed. Judgment affirmed.