Steele v. German Insurance ( 1892 )

McGrath, J.

This action is upon a Michigan standard policy, which contains the following provisions:

“The sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. **********

“ If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, * * * and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement” ordinarily denominated “proofs of loss.”

“ The loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company.”

The policy contains a number of other distinct paragraphs limiting the liability of the company. One provides that the entire policy shall be void if the insured has concealed or misrepresented any material fact, or if he has misrepresented his interest, or in case of any fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after the loss; another declares that the entire policy shall be void upon the happening of any one of 14 contingencies; another provides that “this company shall not be liable for loss” in a number of enumerated cases; another that in a certain contingency the insurance shall cease; another that the company shall not be liable for losses to certain classes of property, enumerating them, unless, etc. Then follows the provision 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.”

This latter provision clearly refers to such requirements in the policy as relate to the notice of loss, proofs, and adjustment of the 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. Insurance Co., 90 Mich. 302, and brings it within the rule laid down in Tubbs v. Insurance 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 provision relating to proofs, and in the paragraph relied upon by defendant the words “until after” import order or sequence, rather than an 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 within which it is to be done. It is therefore unnecessary to consider the question of waiver.

Upon the other points I concur with Mr. Justice Grant, and the judgment should be affirmed, and it is so ordered.

Morse, C. J., and Montgomery, J., concurred with Mc-Grath, J.