dissenting.
With the concluding statement in the opinion of 'the majority, I cannot agree. This statement reads as follows: “Consequently, the facts recited in the letter constitute a sufficient proof of death within the provisions of the policy presently before us. This being true, the furnishing of proof of death as a condition precedent to the bringing of suit has been met.”
Before discussing this point, I desire to make a more complete statement of the facts of the case.
This is a suit to recover on a life insurance policy *473payable to the insured’s estate. Action was brought by the widow as administratrix to recover from the insurance company the full face amount of the policy. A jury was waived. The trial court dismissed the action, without prejudice to a new action, on compliance with proof of loss requirements, and the administratrix appealed.
An amended petition was filed on April 10, 1945, in which plaintiff administratrix brought suit for a judgment for the full sum of $2,500 with interest at the rate of six percent from November 4, 1943. Attached to this amended petition is a copy of the policy sued upon, which is marked “Exhibit A.” The policy is dated March 12, 1937; the name of the insured is James Francis O’Neil, who was 25 years of age at that time. The policy was issued by the Union National Life Insurance Company of Lincoln for $2,500.
Under the paragraph of this policy entitled “Incontestibility,” the third provision reads as follows: “Conditions as to Military Service or Naval Service in time of war. Should the Insured die before attaining the age of thirty-five, from any cause while engaged in Military or Naval Service in time of war or within six months after the termination of such Service as a result thereof, the amount payable hereunder shall be limited to the premiums paid together with interest thereon at the rate of five per cent per annum, less any indebtedness thereon to the Company.”
Under the “General Conditions” printed in this policy, it is provided that “This Policy is payable at the Home Office of the Company in Lincoln, Nebraska. Before any amount shall be paid hereunder, due proofs of the death of the Insured must be furnished, * *
The company in its answer admitted the issuance of the policy and that the policy was in full force and effect at the time of the commencement of this action. It further alleged that at no time has this defendant denied liability under the policy, but at all times it has recog*474nized. it to be in full force and effect. The defendant company further alleged that said policy provides that its benefits are payable upon receipt of due proofs of death, and alleges that no such proofs of death have been furnished to the company prior to the commencement of this action.
For a reply the plaintiff administratrix admitted that the said policy provides that benefits are payable upon receipt of due proofs of death, and alleged that prior to the commencement of this action the defendant company by its written communication denied liability for the face amount of the policy and by such denial the defendant waived the furnishing of due proofs of death of the insured.
Upon cross-examination of the administratrix, counsel for defendant company offered in evidence exhibit No. 6, to which plaintiff objected, but it was received in evidence for the purpose of showing the fact of death. Said exhibit No. 6 was written by the administratrix at Sweetwater, Texas, December 22, 1943, addressed to the defendant company, the first sentence of said letter reading: “This letter will inform you of the death of Capt. James F. O’Neil, while in military service in Italy, November 4th.” The second sentence of the letter described the policy. The last sentence was: “I would like to hear from you by return mail relative to this policy.”
Exhibit No. 3, dated December 27, 1943, was the reply of the company to her, expressing regret to learn of his death, enclosing a settlement form for her to complete, and asking her to attach the official notification from the War Department of his death, saying they would photostat this and return it to her. The letter then continued:
“You will notice by the terms of the contract that the death claim under the conditions of your husband’s death is the return of the life premiums paid with interest at 5%. In addition to this we will refund the Double Indemnity premiums from the date of enrollment in the *475armed forces of your husband, on which date the benefits with the Double Indemnity clause are cancelled. * * *
“It appears that the total premiums paid, with interest and the refund of the Double Indemnity premiums will amount to approximately $245.00.”
On January 13, 1944, the defendant company again wrote to the administratrix, saying they had received no answer and asking for the official notification of the War Department of the death of Capt. O’Neil, and saying: “When these proofs of death are received and approved, your claim will be paid, and we will return the notification of death to you.”
On April 6, 1944, the defendant company wrote to her a third time, saying, in brief, that they had not heard from her and asking what they could do to help her complete the claim.
The principal assignments of error of plaintiff are: That the trial court erred in not finding that she had complied with all of the terms of the policy; that the court erred in finding that the defendant company did not waive the furnishing of due proofs of death; that the trial court erred in admitting in evidence and permitting cross-examination upon the letter, exhibit No. 6, of the plaintiff, notifying the company of the death of the insured; and erred in permitting cross-examination of the plaintiff as to why she did not answer the company’s letters, and why she did not send the company a copy of the telegram from the War Department; that the decision of the trial court is not sustained by the evidence and is contrary to law.
The defendant company relies upon the Nebraska statutory requirement and sets out that the 12th provision of section 44-502, R. S. 1943, provides: “ (12) A provision that when a policy shall become a claim by the death of the insured, settlement shall be made upon receipt of due proof of death, or not later than two months after receipt of such proof.”
“Where, by the terms of a policy of insurance on *476property, the payment of the loss is to occur only after the furnishing of notice and certain proofs thereof, the furnishing of such notice and proofs constitutes a condition precedent to any right of action thereon.” 7 Cooley’s Briefs on Insurance (2d ed.), p. 5737.
There is an obvious difference between the words “evidence” and “proof.” The former, in legal acceptation, includes the means by which any alleged matter of fact is established or disproved. The latter is the effect or result of the evidence. See 1 Greenleaf, Evidence, § 1, p. 3.
Proof is that which convinces; evidence is" that which tends to convince. Evidence is the medium of proof; proof is the effect of the evidence.
When a statute requires proof of death to be made, as our Nebraska statute does, it must be by legal evidence, not by a simple letter.
“Life policies frequently contain a provision requiring ‘due notice and proof of death’ before any right of action accrues upon the policy. • Such a provision is of course a condition precedent to payment. And no liability attaches unless proof is furnished or unless the provision is waived.” 5 Joyce on Insurance (2d ed.), § 3290, p. 5494. And this court has said: “And it seems to be the well settled doctrine in this country that the notice and statements, supported by oath, are conditions precedent, and must be performed before the assured is entitled to receive payment or sue for the loss, unless the company by some act on its part waives the performance of said conditions.” McCann v. The Aetna Insurance Company, 3 Neb. 198.
“Proof of death is defined to be more or less formal evidence furnished insurer by claimant under policy of fact that death has occurred, the particulars thereof and the data necessary to enable the insurer to determine its liability, and no formality is essential in furnishing proof of death unless policy so requires.” Schell v. Metropolitan Life Ins. Co., 3 S. W. 2d (Mo. App.) 269.
The question may properly be asked whether the sylla*477bus of the opinion adopted in the case at bar should not include the words “reasonably verified” following the words “a statement of facts,” as found in the text of the opinion.
The plaintiff in the case at bar argues that the only real issues presented by the pleadings are whether the plaintiff performed all the conditions required of her by said policy, and whether the defendant company, as shown by its letters, waived the furnishing of due proofs of death.
But this court has said: “There is no forfeiture or denial of liability when the insurance company treats the policy sued upon as a valid or binding contract.” Dodder v. Pacific Mutual Life Ins. Co., on rehearing, 104 Neb. 74, 176 N. W. 730.
However, from a careful examination of the letters in the case, I fail to see any possible statement in the three letters of the defendant company which can be construed as a denial of all liability and so constitute a waiver of the requirement that proofs of loss must be furnished.
It may be admitted that the defendant company did, in effect, very properly deny liability for the entire $2,500, but it offered to return the premiums, for which amount it would be liable in case of a war death, but it always insisted on the plaintiff first making due proofs of death.
It appears from plaintiff’s actions that this kind of a settlement was not satisfactory to her, and after a delay of many months she brought suit for the entire face of the policy of $2,500 and never furnished the company with the required legal proofs of death, which were clearly required, first, by the terms of the policy itself, and, second, positively required by the law of Nebraska, which provision is a valuable protection to other policyholders by forbidding an insurance company to pay out its assets to a claimant who simply writes *478in a letter saying the insured has met death, as the plaintiff did in the case at bar.
“A provision in an insurance policy reducing liability or exempting an insurer from liability in case the insured dies while engaged in naval or military service is valid, and not against public policy.” 29 Am. Jur., Insurance, § 911, p. 695. See Olson v. Grand Lodge, A. O. U. W., 48 N. Dak. 285, 184 N. W. 7, 15 A. L. R. 1270.
The company in the instant case does not appear to me to be avoiding payment, but rather appears willing and able to settle this policy promptly and exactly according to the terms of the contract, when legal proof is made.
This dissent has adhered somewhat closely to the statements made by the trial court in its reasons for dismissing the plaintiff’s action, as set out in the order of dismissal.
It is my considered opinion that this court should have affirmed the action of the trial court of a dismissal without prejudice to bringing a new action after compliance with the proof of death requirements.