The Hawaiian gazette., 1902-02-11
POLICIES
ARE VOID
Failure to Prove
Loss in Time
Limit.
(From Saturdays daily.)

The Supreme Court, Justice Galbraith
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 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 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
literal compliance is unnecessary and
that "plaintiff had made full compli-
ance" in so far as proofs of loss are
concerned and was entitled to maintain
his action.
Whatever the practice in this jur-
isdiction may be as to the authority of
the court to direct verdict non OBJ
stante, insist that this is not a prop
err 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
ises. The jury in the lower court rem
dered 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 family as an excuse. The
Supreme Court holds that the lower
court should have directed a 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 con-
sderation of the stipulations" therein
named and of the payment of the prem
ium, 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
such time is extended in writing by this
company, render a statement to this
company, signed and sworn to-" etc.
(such statement being what IL commonly
known as proofs of loss') and further
provided that mo suit or action on this
policy. for the recovery of any claim,
shall be sustainable in any court of law
or equity until after full compliance by
the insured with all the foregoing re-
quirements. nor unless commenced with
in twelve months next after the fire."
Held, that the rendering of the state
ment in question within sixty days after
the fire, is n condition precedent to the
right of action and that in the absence
OF a waiver. n failure to render such
statement within the time specified bars
a recovery under the policy.
b.. clerk in the employ of the local
agent of the insurance company, made
to the plaintiff, when the latter gave no
tice of claim for the amount of the In
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