(dissenting). I regret that'I am unable to concur in the opinion and judgment of the court in this case.
There is a provision in this policy which stipulates that in case of loss by fire the insured shall give immediate notice and furnish proofs of loss within sixty days, but there is no express provision that a failure to furnish proofs of loss within the time required shall work a forfeiture of the policy. A consideration of the whole policy shows that it expressly provides that it shall be void if the insured has misrepresented his interest or any material fact, and that it also expressly provides, in a number of other contingencies, that the policy shall be void. The fact that the policy expressly provides in a number of contingencies for a forfeiture, but makes no such provision in reference to the failure to furnish proofs of loss within the time named, is significant, and tends to show that it was not the intention of the parties to this contract that such a failure should work a forfeiture.
But a majority of the judges were of the opinion that a subsequent provision in the policy rendered. it void on account of a failure to furnish the proofs of loss within the sixty days named. That provision is as follows, towit: “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 after the fire.” I see nothing in this provision that avoids the policy if proofs of loss are not furnished within sixty days. The essence of this provision, so far as the question we are now considering is concerned, is that the action must be brought within twelve months .after .the fire, and that the proofs of loss must be furnished before the action is brought. We should keep in mind the rule that forfeitures are not favored, that the contract should be upheld rather than made void, if it can be done under any reasonable view of the language used, for the company has received its premiums for the insurance, and only a stern legal necessity will warrant a construction that will nullify the policy. Joyce on Insurance, 212, and cases cited.
Remembering that this policy was prepared by the insurance company, and that any reasonable doubt as to its meaning should be resolved in favor of the insured, I feel fully convinced that the failure to furnish proofs of loss within sixty days did not by the terms of this policy work a forfeiture of the rights of the assured. The language of the provision that no action shall he sustainable, “until after full compliance with all the foregoing requirements, nor unless commenced within twelve months after the fire,” when taken in connection with other provisions of the policy, means as before stated no more than that the action must be commenced within twelve months from the date of the loss, and that proofs of loss must be first furnished before the action can be maintained.
This view is sustained by a number of decisions by the courts of other states in reference to similar policies, of which I cite only a few: Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 52 L. R. A. 70; Steele v. German Ins. Co. 93 Mich. 81, 18 L. R. A. 85, 53 N. W. 514; Kenton Ins. Co. v. Downs, 90 Ky. 236. See also Joyce on Insurance, § 3282, and cases cited.
It follows from what I have said that in my opinion the judgment against the insurance company in this case should be affirmed, and I feel therefore compelled to dissent from the judgment of reversal entered by the court.
Wood, J., concurs in the dissenting opinion.