DISSENTING OPINION OF
GALBRAITH, J.I do not agree with the conclusion of the majority of the court that the failure to furnish “proofs of loss” within sixty days after the fire was a bar to plaintiff’s recovery on the policy. Conceding that this conclusion has the support of some text-writers of more or less prominence and of some courts of re- . spectable authority, I do not think that the- circumstances connected with the loss in question or the ends of justice, call for a too literal interpretation of this contract of insurance.
The record shows that on the “suspicions” of two physicians the Board of Health declared the subject of the insurance to be infected with bubonic plague, dispossessed the plaintiff, and carted him away to another part of the city and confined him in strict quarantine for a period of fifteen days and while so confined burned his property to the ground; that for a considerable period after his release from quarantine the plaintiff was incapacitated from transacting business, so much so that his lawyer and friend refused to write his will for him; that fifty-five days after the fire the plaintiff gave “immediate” notice to- defendant’s agent of the loss and ten or twelve days later filed the “proofs of loss” required by the policy; that while one of the grounds on which the defendant resists payment is the failure to file the proofs within the 60 days specified in the policy, the principal ground relied on is one that is declared by the policy to render it void, i. e., a “change of possession” in the subject of insurance.
It seems to me that the acts of the plaintiff were a “full compliance” with this provision of the policy, although not a strict literal compliance.
It should not be overlooked in construing this contract that *30it was prepared by the insurance company and its language and terms are those of the company and that those skilled in the business — persons who fully understand the use of the English language and are. capable of expressing their meaning and intent in clear and unambiguous terms — are the authors of the contract.
The policy in suit sets out three kinds of things, any one of which happening, renders the policy absolutely void and then specifies fourteen other kinds of things any one of which if it happens and an express waiver in writing is not shown by a duly authorized person, renders the policy null and void. The failure to furnish “proofs of loss” within 60 days after fire is not-included in any one of these classes. The language- under consideration is as follows: “If fire occurs the insured shall give immediate notice of any loss * * * and, within sixty days after the fire, unless such time is extended in writing by the company, shall render a statement to this company signed and sworn to by the insured stating the knowledge and belief of the insured as to the time and origin of the fire,” etc. No penalty is mentioned for failure to give “immediate” notice of the loss and to furnish the proofs of loss within 60 days after the fire unless the clause at the end of the policy providing that “no 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 requirements, nor unless commenced within twelve months next after the fire,” can be said to be a penalty. It is at least doubtful whether or not this clause last quoted was so intended. I feel clear that-the doubt ought to be resolved in favor of the insured. If it had been intended that a failure to furnish the “proofs of loss” within 60 days after the fire should work a forfeiture of the plaintiff’s right to recover, it would have been so easy for the company to have added another to the fourteen lands of things that rendered the policy void and to have left no doubt in the mind of any one as to- the effect of a failure to' render the proofs within the time specified. The conclusion of the majority gives *31■this provision the same effect as if the company had. placed it among the things rendering the policy void unless waived. I insist that such a construction is unreasonable and unwarranted by the better authorities.
“If a policy of insurance provides that notice and proofs of loss are to be furnished within a certain time after loss has occurred, but does not impose a forfeiture for failure to furnish them within the time- prescribed and does impose forfeiture for .a failure to comply with other provisions of the contract, the insured may, it is held, maintain an action, though he does not furnish proofs within the time designated, provided he does furnish them at some time prior to- commencing the action on the policy. And this has been held to be true even though the policy provides that no action can be maintained until after a full compliance with all the requirements thereof.” 4 Joyce, Ins., Sec. 3282.
The Supreme Court of Michigan in construing the identical language under consideration said: “This latter provision clearly refers to such requirements in the policy as relate to the notice of loss, and its evident intent is to provide that no suit can be maintained unless commenced within one year, and in no event until after compliance with such requirements. The use of the words “until after” distinguishes this case from Gould v. Ins. Co., 90 Mich. 302, and brings it within the rule laid down in Tubbs v. Ins. Co., 84 Mich. 646. The effect of misstatement, of changed condition, and contingency, of omission and commission, of fraud and false swearing, is explicitly declared in each other paragraph in which the act, omission or contingency is referred to even the effect of false swearing in the proofs of loss is specifically declared; but the paragraph relating to proofs of loss suggests no penalty. This omission in an instrument replete with clear and explicit declarations' of forfeiture is worthy of note. The presence of the declaration of forfeiture in every other instance, and its absence in this, ‘is clearly not- an oversight. Time is not made the essence of the provisions relating to proofs, and in the paragraph relied upon by the defendant -the words “until after” import order or sequence rather than *32•the intent to make performance within the time specified 'the essence of the requirement. The selection of this phraseology seems to me inconsistent with such a purpose. The language has reference to the thing to be done before suit brought rather than the time withiu which it is to be done.” Steele v. Ins. Co., 93 Mich. 83. The. same doctrine is reaffirmed in Reynolski v. Ins. Co., 96 Mich. 395. This same' construction has been adopted in Wisconsin, Vanquidertaelen v. The Phoenix Ins. Co., 82 Wis. 112, and in Minnesota by a decision rendered June 30, 1901. Mason v. St. Paul Fire & Marine Ins. Co., 85 N. W. R. 13, and in Texas, Sun Mutual Ins. Co. v. Mattingly, 77 Tex. 162, and in Kentucky in Orient Ins. Co. of Hartford, Conn. v. Clark, 59 S. W. R. 863. In this O'lark case the Supreme Court of Kentucky after stating that it had frequently decided that proofs of loss were not a condition precedent to recovery on an insurance policy said'relative to' the Downs caso which is patronizingly criticised by a text writer quoted in tbe majority opinion: “This question was fully considered in Ins. Co. v. Downs, 90 Ky. 236 (13 S. W. 882). And it was there held that where a policy of fire insurance prescribed the various acts or causes which shall work a forfeiture of the policy, and omitted to provide that the failure to« furnish proofs of less within the time required by the policy should operate: as a fjrfeiture, it was sufficient if proofs of loss were- furnished before suit was brought; that the court would not imply a forfeiture on account of the. failure to furnish proofs of loss within the time prescribed,” p. 864. Four other cases from the same court are cited in support of this construction. See also to the same effect Coventry Mutual Life Stock Ins. Co. v. Evans, 102 Pa. St. 281, and Kohnweisler v. Phoenix Ins. Co., 51 Fed. R. 562.
The case of Liverpool & London & Globe Ins. Co. v. Kearney, 180 U. S. 132, is a very instructive and interesting case on the proper construction of contracts of insurance. The cmelusion of the majority of the court in this case'finds no support or encouragement in that. The part of the policy under consideration in that case was that commonly known as the “iron *33safe clause,” wherein the insured “agreed and covenanted” to keep a set of books, etc., and the last inventory of his business in an iron safe at ni'ght, etc., and to produce the books and inventory in case of loss, and the clause provided further that “in the event of failure h> produce the same, the policy shall be deemed null and void, and no suit or action at law shall be maintained thereon for any such loss.” The loss occurred and the insured did not produce the “inventory” and the company denied liability under the above quoted clause of the policy. Suit was brought and maintained and judgment rendered for the plaintiff. This judgment .was affirmed by the Circuit Court of Appeals for the Eighth Circuit and again by the United States Supreme Court. The Supreme Court said, “The argument in behalf of the defendant assumes that tire insurance company is entitled to a literal interpretation of the words of the' policy. But the rules established for the construction of written instruments apply to contracts of insurance equally witlr other contracts. * * * To the general rule there is an apparent exception in the case of contracts of insurance1, namely, that where a policy of insurance is so framed as to1 leave room for two constructions, the words used should be interpreted most strongly against the insurer. This exception rests upon the ground that the company’s attorneys, officers or agents prepared the policy and it is its language that must be interpreted.” National Bank v. Ins. Co., 95 U. S. 673, 678-9; Monlor v. Amer. Life Ins. Co., 111 U. S. 335, 341; Id. pp. 135 and 136. And on page 138 of the opinion the court says in closing, “A literal interpretation of the contracts of insurance might sustain a contrary view, but the law does not require such an interpretation. In so holding the court does not make for the parties a contract which they did not make for themselves. It only interprets the contract so as to do no violence to the words used and yet t.o meet the ends of justice.” This reasonable and authoritative rule of interpretation applied to the policy in suit would force the conclusion that the plaintiff had made 'Tull *34compliance” in so far as proofs of loss are concerned and was entitled to maintain his action.
Whatever the practice in this jurisdiction may be as to authority of the court to direct a verdict non obstante, I insist that this is not a proper case for the exercise of such autocratic power. It is not clear that such action does not deprive the plaintiff of an absolute right. He is at least entitled to the privilege of a new trial.