Vangindertaelen v. Phenix Insurance

Cassoday, J. The fire occurred September 14,1890. The notice of loss appears to have been given within- six days thereafter, as required by the policy. The learned counsel for the defendant contends that the evidence fails to sustain the finding of the jury to the effect that the plaintiff- sent to the defendant by mail, at Brooklyn, N. Y., proofs. of loss, with the certificate of a magistrate annexed, September 28, 1890, and that the defendant received the same. Eor the purposes of this appeal we shall assume-that, this contention is correct. The defendant admits in its answer that on or about December 11, 1890, it received by mail; at its office in Chicago, what purported to be proofs of loss anda certificate of a notary public relative thereto;, but alleges that such proofs and certificate were not furnished at its Chicago office within the time and in accordance with the terms and conditions prescribed in the policy. The policy required the plaintiff to render particular verified proofs of loss within thirty days after such notice of-loss*— that is to say, within thirty-six days after the fire; but the policy nowhere makes the failure to render such proofs within the time named operate as a forfeiture of the policy. To prevent such forfeitures, courts are bound to construe such contracts as strongly against the insurer, and as favor [118] ably for the insured, as their terms will reasonably permit. Kircher v. Milwaukee M. M. Ins. Co. 74 Wis. 473. The most that the policy did do in the regard mentioned was to provide that the loss Should not be payable until sixty days after such proofs had been received at the defendant’s Chicago office. The delay in furnishing the proofs at that office until December 11, 1890, therefore, merely operated to postpone the maturity of the 'claim until sixty days thereafter. The suit was not commenced until March 11, 1891, and hence no objection can be maintained for mere want of maturity. But it is claimed that the proofs so conceded to have been furnished were defective and insufficient. The proofs and certificate so received at the defendant’s Chicago office were retained by it without any objection until the trial of this action. This, upon well-settled principles of law, must be regarded as a waiver of such defect or insufficiency, if any existed. Palmer v. St. Paul F. & M. Ins. Co. 44 Wis. 209; Cannon v. Home Ins. Co. 53 Wis. 585; Cayon v. Dwelling House Ins. Co. 68 Wis. 510. Error is assigned because the court did not direct a verdict in favor of the defendant, for the reason that no arbitration was ever had as required by a provision of the policy mentioned in the foregoing statement, nor any demand therefor ever made by the plaintiff. Counsel lays stress on the clause of the policy which made the loss pajm-ble sixty days after the proofs were received at the Chicago office and the loss had been ascertained by the arbitrators in accordance with the policy. The policy also provided that “ the amount of sound value and of damage . . . may- be determined by mutual agreement between the company and the assured, or, falling to agree, the same shall then be ” determined by arbitrators as prescribed. Manifestly, there was no intention of requiring a submission to arbitrators in case the parties agreed as to the amount of [119] such loss. The presentation of proofs to the defendant, as indicated, was in effect a claim for the amount of loss therein specified. It was somewhat in the nature of a stated account. If the defendant deemed that amount too large or otherwise unsatisfactory, it could easily have made the same manifest, or requested, or at least suggested, an arbitration. But the defendant silently acquiesced in the. claim made for three months before the commencement of the action. It then sought to use the arbitration clause, not to reduce the amount of the claim, but to defeat the policy altogether. To allow the clause to have such an effect would be to use it as an instrument for alluring the unwary into a trap from which there could be no escape. Certainly, such a construction should not be given to the clause unless the language imperatively requires it. But the arbitration was only provided for in case the parties failed to agree. In case they disagreed, and the amount of loss was submitted to arbitrators, then the same was not to be payable until determined by their award, even though it should not be made until weeks, or even months, after the expiration of the sixty days; and the provision making such award a condition precedent to the commencement of a suit upon the policy presupposes such failure to agree and consequent arbitration. This is but another application of the rule already mentioned, requiring a strict construction to prevent a forfeiture. This court has frequently applied it to similar clauses in contracts for arbitration. Phœnix Ins. Co. v. Badger, 53 Wis. 283; Canfield v. Watertown F. Ins. Co. 55 Wis. 419; Oakwood Retreat Asso. v. Rathborne, 65 Wis. 177; Bailey v. Ætna Ins. Co. 77 Wis. 336. See, also, Farnum v. Phœnex Ins. Co. 83 Cal. 246; Randall v. Phœnix Ins. Co. 10 Mont. 362. This is certainly in harmony with the rulings of this court, whatever may be the adjudications in some other states. By the Court. — The judgment of the circuit court is affirmed.