The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-02-08
POLICIES
ARE VOID
Failure to Prove
Loss in Time
Limit.
SUPREME COURT
AGAIN DECIDES
important Question Relative to
Chinatown Fire Losses
Settled.

again dissenting, filed a second opinion
yesterday, which finally settles several
| much mooted insurance questions ris-
ing out of the plague fire. The decis-
ion of the circuit court in the case of
Geo. E. Boardman VS.. Fireman's Fund
| Insurance Co. is reversed and a judg
| ment ordered for the defendant. The
majority opinion was written by Jus
| tice Perry, c. A. Brown sitting in place
of Chief Justice Frear, disqualified,
| concurring.
! The question settled by yesterdays
| decision disposes of a large number of
similar cases pending in the circuit
court, namely, the rights of policy
holders who failed to make returns of
proof of loss within sixty days after
| the fire. Justice Perry, in his opinion,
holds that the failure to make the re-
| turn within sixty days as required by
the conditions of the policy bars re-
covery, even though the plaintiff was
unable to do so because of the restric
tions placed about him by the Board
of Health. Justice Galbraith, dissent
ing, is of the opinion that the failure
to furnish proofs within sixty days did
not bar plaintiff from recovery, but
that he had complied as far as it was
possible for him to do. He holds that
a literal compliance is unnecessary and
that plaintiff had made full compli-
ance" in far proofs of loss are
concerned and was entitled to maintain
his action.
Whatever the practice in this jur-
isdiction may be to the authority of
the court to direct a verdict non OBJ
stante. I insist that this is not a prop
er case for the exercise of such auto
cratic power. 1t is not clear that such
action does not deprive the plaintiff of
an absolute right. He is at least en-
titled to the privilege of a new trial"
The suit in question was,upon a pol
icy for $1,000 issued by the defendant
upon the dwelling house of plaintiff on
Kinau street. The property was de-
stroyed by fire January 21st, by the or
der of the Board of Health, after hav-
ing been condemned as infected prem
Uses. The jury in the lower court rem
dered a verdict for plaintiff for the
failed to file his claim for loss within
sixty days as specified by the terms of I
the policy, but set forth illness and
death in the family an excuse. The
Supreme Court holds that the lower
court should have directed verdict :
for defendant as to the questions of
filing proofs of loss and of waiver The
case is remanded to the lower court
with instructions to enter judgment for {
defendant.
case: ;
A fire insurapce policy, issued Sin con- G
liberation of the stipulations'' therein
famed and OF the payment of the prem
UNI, provided, among other things, that
if fire occur the insured will give i'm
Mediate notice of any loss thereby in :
writing to the company and .
within sixty days after the fire, unless n
UGH time is extended in writing by this b
render a statement to this n
signed and sworn to- etc. T
such statement being what is commonly S
nown as proofs of loss'), and further II
rovided that no suit or action this -
olicy, for the recovery of any claim, f.
hall be sustainable in any court of law a
r equity until after full compliance by W
he insured with all the foregoing re- "
uirenents. nor unless commenced with p
l twelve months next after the fire"
Held, that the rendering of the state
lent in question within sixty days after
he fire, is a condition precedent to the CO
ght of action and that in the absence
f a waiver, a failure to render such
tatement within the time specified bars in
recovery under the policy. he
pu
the plaintiff, when the latter gave no.
ce of claim for the amount of the in
trance. oral statements to the effect
lat the company would not pay the p"
mount of the loss The policy provided y ;,
lat no agent of the company, except an tn
fcer thereof, should have power to go
awe or be held TO have waived any of
5 provisions unless such waiver be in iee
riting upon or attached to the policy
Id that act or statement of any Off
r or agent should operate as an estop-
: 0i 'iie 'oiiipa"S unless N "Fltins' Blu
ldorsed upon the policy. mr.,
Held, that the oral statements of B. did 1T
IT constitute or operate as waiver of of
e requirement as to the filing of proofs "v
loss. ~