Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1902-02-08
BOARDMAN OUI[AWED
MAJORITY DECISION
REYERSES The VERDICT
Policy Strictly Construed Against
Insured Party---JuStiCe Gal
braith Utters a Strong
Dissent.

George T.. Boardman has lost his
suit for $4,000 insurance against the
Fireman's Fund Insurance Company in
the Supreme Court. A jury in the Cir
cult Court gave him a verdict for the
full amount and the company appealed.
Justice Perry Is writer of the majority
opinion setting aside the verdict, Cecil
Brown, sitting in place Of Chief Jus.
tice Frear, concurring. Justice Gal.
Draith files a dissenting opinion.
The suit was upon a policy for $1,000
issued by the defendant upon tho
dwelling house of plaintlff. The
property was destroyed by fire Jan
uary 81, by the order of the Board
of Health after having been condemn
ed as infected premises. The jury in
| the lower court rendered a verdict for
/ plaintiff for the full amount of the
| policy. The plaintiff failed to file his
claim for loss within sixty days as
specified by the terms of the policy. but
set forth illness and death in the ia
mily as an excuse The Supreme Court
holds that lower court should have
directed u 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
The following is the syllabus in the
case:
"A fire insurance policy issued in
consideration Of the stipulatiOns there
in named and of the payment of the
premium. provided, among other
| things. that II fire occur, the insured
will give immediate notice Of any loss
thereby in writing to the company
and, within sixty days after
the fire unless such time Is extended
in writing by this company, signed and
| sworn to- etc. (such statement being
what is commonly known as proofs OF
lossD, and further provided that no
suit or action on this policy, for the
recovery of any claim. shall be sus-
tainable In any court Of law or equity
until after full compliance by the in
sured with all the foregoing require
ments, nor unless commenced within
twelve months next after the fire.
Held, that the rendering Of the
| statement in question within sixty days
after the fire, is a condition precedent
| to the right of action and that, in the
| absence Of waiver. failure to render
such statement within the time speri,
fled bars recovery under the policy.
"B.. clerk In the employ of the 10.
cal agent OF the insurance company
made TO the plaintiff. when the lattel
gave notice of claim for the amount o.
the insurance, oral statements to the
effect that the company would not pay
the amount of loss. The policy pro.
vided that no agent of the company,
except an officer thereof. should have
power to waive or be held to have
waived any of its provisions. unless
such waiver be in writing upon or at
tached to the policy and that no act or
statement OF any officer or agent should
operate as an estOppel on the com.
pany unless in writing, endorsed upon
the policy.
Held. that the oral statements of b
ulU ubN tOll6lllNNt vi Ol'ltNN do q
waiver Of the requirement MS to the
filing Of proofs Of loss"
Justice Galbraith. dissenting. 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 lie holds that a literal
compliance Is unnecessary and that
"plaintiff had made full compliance
in so far as proofs of loss are concern
ed and was entitled to maintain hiS
action.
! Whatever the practice In this juris
diction may be as to the authority o.
the court to direct a verdict non oh
stante. | insist that this Is not a prop
er case for the exercise Of such auto
cratic power. It Is not clear that sucl
action does not deprive the plaintifi u
an absolute right. He Is at least en-
titled to the privilege OF new trial. "
1t