The Saint Paul Fire and Marine Insurance Company v. Owens

• Citation: 69 Kan. 602,77 P. 544
• Decision Date: 07 July 1904
• Docket Number: 13,598
• Parties: THE SAINT PAUL FIRE AND MARINE INSURANCE COMPANY v. W. R. OWENS
• Court: United States State Supreme Court of Kansas

77 P. 544

69 Kan. 602

THE SAINT PAUL FIRE AND MARINE INSURANCE COMPANY v. W. R. OWENS

No. 13,598

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INSURANCE POLICY -- Failure to Make Proof of Loss in Time Not a Forfeiture. Unless an insurance policy in express terms provides for a forfeiture in case proof of loss be not made within sixty days after the fire, a forfeiture will not be declared by the court.

2. INSURANCE POLICY -- Negligence Must be Wilful and Fraudulent. Negligence of the assured sufficient to defeat a recovery on an insurance policy must be wilful, and of such degree as to amount to fraud.

McFadden & Morris, Fyke Bros., and Snider & Richardson, for plaintiff in error.

Sutton & Sutton, for defendant in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

This was an action to recover on a fire-insurance policy in which judgment was rendered for plaintiff. The defendant's demurrer to plaintiff's evidence was overruled, and the court, at the close of the evidence, refused to instruct the jury to find for the defendant. These are the first two errors alleged. They involve but one question, which is whether the failure of plaintiff to make proof of loss within sixty days after the fire forfeited his policy. It is contended that by the condition of the policy the failure on the part of the assured to make such proof within that time forfeited the policy. It may be pertinent to remark that proof of loss was made after sixty days, but before the action was brought, and that the action was brought within the time limited by the policy. A forfeiture is never declared by a court unless it is plainly and specifically provided for in the policy. The policy involved in this case does not declare that a forfeiture shall take place if proof of loss be not made within sixty days from date of the destruction of the property; it provides that proof of loss shall be made within that time, but does not declare that a failure to perform such condition shall work a forfeiture of plaintiff's right of action.

The insurance company is a Minnesota corporation and the form of its policy is provided by the laws of that state. This question arose in the supreme court of that state upon the same form of policy sued on in this action. ( Mason v. St. Paul Fire & Marine Ins. Co., 82 Minn. 336, 338, 85 N.W. 13, 83 Am. St. Rep. 433.) In that case it was said:

"It is very generally held by the authorities in cases where this question has been presented, that unless the policy provides a forfeiture, or makes the service of proofs of loss within the time specified therein a condition precedent to the liability of the company, the time within which such proofs are required to be furnished is not of the essence of the contract. Where no forfeiture is provided by the terms of the...