Kenton Insurance Company v. Downs, &C.

• Citation: 90 Ky. 236
• Court: Court of Appeals of Kentucky
• Decision Date: 05 June 1890
• Parties: Kenton Insurance Company v. Downs, &c.

90 Ky. 236

Kenton Insurance Company v. Downs, &c.

Court of Appeals of Kentucky.

June 5, 1890.

APPEAL FROM LOUISVILLE LAW AND EQUITY COURT.

BROWN, HUMPHREY & DAVIE FOR APPELLANT.

COLLINS & FENLEY OF COUNSEL ON SAME SIDE.

H. L. STONE AND HARGIS & EASTIN FOR APPELLEES.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

The Kenton Insurance Company, on the 26th of March, 1886, issued its policy of insurance to William Downs on a two-story frame building and the household furniture — sixteen hundred dollars on the building and two hundred dollars on the furniture. The building was burned on the 7th of March, 1887. The preliminary proofs of loss were furnished on the 16th of April, 1887, and additional proof on the 16th and 25th of May of the same year.

The judgment below was for the policy-holder, Rebecca Downs, to whom it had been assigned, and from that judgment the company has appealed.

The principal, and, in fact, the only question necessary to be considered, and the one upon which a reversal was had in the Superior Court, arises from the failure to furnish the company the proof of the loss within thirty days after the destruction of the property. It is maintained by the appellant that the provision of the policy requiring this proof to be made and furnished within thirty days is a condition precedent to the liability on the part of the company, unless there is proof showing a waiver. On the other hand, it is argued by the appellee that this requirement is a condition precedent to the right to institute the action. There is some discussion in the briefs of counsel in regard to the question of waiver, but as the main question, and the one decisive of this case, must be considered, it is not deemed necessary to determine whether or not the company waived its right to have the proof of loss within the specified time. Where notice or proofs of loss are required to be made forthwith, or within a reasonable time, which is, in effect, the same, it becomes at once necessary to determine the question of diligence on the part of the insured and if, under the circumstances of the particular case, he has used reasonable diligence in furnishing his proof, it is all that should be required. (Knickerbocker Insurance Co. v. McGinnis, 87 Ill., 70; Phillips v. Protection Insurance Co., 14 Mo., 220.)

The policy before us, like many others, contains stipulation after stipulation rendering the policy void, and forfeiting all claim on the part of the insured to a recovery. These stipulations are found under the heads, This company shall not be liable and General Provisions, in which we find as many as fifteen or twenty states of case in which the company is released from all liability. In this contract of insurance the causes of forfeiture are classified, and the attention of the insured called to all the causes working a forfeiture of the policy or relieving the company from all liability. The contract then proceeds to specify the manner in which the insured shall proceed in case of loss. "Proceedings in case of loss: He shall forthwith give written notice of said loss or damage to this company, and shall, within thirty days, render a particular account of said loss or damage, signed and sworn to by him," &c. Under this heading it is further provided that either party may, after the proof has been furnished, claim in writing that the difference, if any, shall be referred to arbitration, with the option on the part of the company to repair or rebuild the property by giving notice of its intention to do so within sixty days after the receipt of the proofs of loss. It is further provided, that the loss shall not be payable until sixty days after the proof of loss has been furnished. The contract then closes with the stipulation "that no suit or action for the recovery of any claim by virtue of this policy shall be commenced until after the amount of such claim has been ascertained by arbitration as provided, nor until all the conditions, provisions and requirements of this...