OPINION OP THE COURT BY
PERRY, J.
(Galbraith, J., dissenting.)
This is an action on a policy of insurance for $7000 issued by the defendant on the dwellingdiouse and outbuildings of the plaintiff on the premises hounded by Lunalilo, Kapiolani and Kinau streets, this city. The* property insured was wholly destroyed by fire on the 21st of January, 1900, by order of the Board of Health after condemnation by that body as being infected with bubonic plague. Tbe case was tried before a jury and a verdict rendered for tbe plaintiff for $7000. The defendant comes to this Court with a number of exceptions, not all of which, however, need be considered.
The defendant excepted to the admission, against objection, of certain evidence offered by the plaintiff to prove oral statements made by one Berg, a clerk in the employ of Bishop & Co., the defendant’s local agents, to the plaintiff on an occasion when the latter with his attorney called at Bishop & Company’s office to give notice of claim for the amount of the insurance. These statements were to the effect that the insurance company would not pay the insurance'. Defendant also excepted to the refusal of the court to’ direct a verdict for the defendant on the ground, among others, that proofs of loss were not presented within the time required by the terms of the policy and that no sufficient excuse in law for a failure to present them within the time mentioned in the policy had been shown, and to the modification by the court of an instruction requested by the defendant on the subject of proofs of loss, by which modification it was left to the jury h> determine whether or not there had been a waiver by the company of the requirements of the policy concerning the filing of such proofs.
[23]*23The evidence sliows beyond doubt that proofs of loss were not filed until March 29, 1900, more than sixty days after the fire. The requirement of the policy is that such proofs be filed within sixty days after the- fire. The only excuse suggested for the failure to present the proofs within the sixty days is that during all of said period the plaintiff, by reason of the death of a member of his family and the loss of his property and for other causes, became ill and mentally incapacitated to such an extent that he was unable to attend to' his ordinary business affairs. Assuming that these facts, if proven, would constitute a sufficient excuse in law, we are of the opinion that the evidence adduced was clearly insufficient to Avarrant the jury in finding that the plaintiff Avas thus incapacitated. It may be added that the undisputed testimony of one of plaintiff’s witnesses shows that on March 16, five days before the expiration of the time limited, plaintiff handed the insurance policy to his attorney for collection and that on the same day the latter gave to Bishop & Co', notice of the loss.
It is contended by counsel for plaintiff that the failure to' file proofs within the sixty days can not avail as a defense to this action for two reasons: (a) because it is not provided in the contract that the policy shall become void in case of such failure and the only penalty is that the right to bring an action on the policy is postponed until after such filing, Avhether before or after the expiration of the sixty days, and (b) because the insurer waived the requirements of the prorfsion in question.
It has been held by some courts that if a policy of insurance provides that proofs of loss are to be furnished Avithin a certain time after loss has occurred, but does not impose a forfeiture for failure to furnish them Avithin the time prescribed and does impose a forfeiture for a failure to comply with other provisions of the contract, the insured may maintain an action, though he does not furnish proofs within the time designated, providéd he does furnish them at some time prior to> commencing the action upon the policy; (see, for example, 4 Joyce Ins. 3282 and Steele v. Ins. Co., 93 Mich. 81) and that to prevent forfeitures, courts [24]*24are bound to- construe such contracts as strongly against tbe insurer, and as favorably for the insured, as their terms will reasonably permit. Vangindertailen v. Insurance Co., 82 Wis. 117. The weight of authority, however, is to the effect that such provisions with reference to the filing of notice or proofs of loss within a specified time, must, unless waived, be strictly complied with, not. only as to the substance of such notice and proofs but also as to time, that their performance is a condition precedent to the right of action and that a failure to present such notice or proofs within the prescribed time, is, in the absence of waiver, a violation of the provision such as to bar a recovery on the policy. “The conditions in policies requiring notice of the loss to- be given, and proofs of the amount to be furnished the insurers within certain prescribed periods, must be strictly complied with to enable the assured to- recover. * * * The contract of insurance is a voluntary one, and the insurers have a right to designate the terms upon which they will be responsible for losses.” Riddlesberger v. Insurance Co., 7 Wall. 386, 390. See also 2 Wood on Insurance §437; Owens v. Insurance Co., 57 Barb. 521; Blossom v. Insurance Co., 64 N. Y. 162, 165; Quinlan v. Insurance Co., 133 N. Y. 356, 362; Bank v. Surety Co., 87 Fed. 188, 123, 124; Knudsen v. Insurance Co., 75 Wis. 198, 202; Gould v. Insurance Co., 90 Mich. 302, 305; dissenting opinion of Grant, J., in Steele v. Insurance Co., supra; Scammon v. Insurance Co., 301 Ill. 621; May, Insurance, §465; Ostrander, Insurance, 2nd ed., §§338, 339, 340, 221, 222, 223; Bowlin v. Insurance Co., 51 Minn. 239. Whether or not in any particular case the filing of proofs of loss within tire time specified is a condition precedent to a right of action, depends upon the intention of the parties as disclosed by the language of the- contract under consideration. Tn the contract in the case at bar it is provided: “If fire occur the insured shall give immediate notice of any loss * * * and, within sixty days after the fire * ‘ * * shall render a statement to this company, signed and sworn to by said insured,” etc., (this statement being what is known as “proofs of' [25]*25loss”); also, “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 language is clear and explicit. The filing of proofs of loss mthin sixty days is one of the requirements full compliance with which is necessary before an action can be maintained. A filing of such proofs after the expiration of sixty days is not full compliance with the provision. Although there is some authority to support it (see Steele v. Insurance Co., supra), the distinction does not appeal to us as being sound which is sought to be drawn between cases where the words “until after” are used, as in that at bar, and those where the word “unless” is used in their stead. In each instance the meaning of the words “full compliance” is the same.
“Almost without exception the courts of this country and England have held that proofs of loss must be furnished as provided by the policy, or the insurer would be discharged.
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OPINION OP THE COURT BY
PERRY, J.
(Galbraith, J., dissenting.)
This is an action on a policy of insurance for $7000 issued by the defendant on the dwellingdiouse and outbuildings of the plaintiff on the premises hounded by Lunalilo, Kapiolani and Kinau streets, this city. The* property insured was wholly destroyed by fire on the 21st of January, 1900, by order of the Board of Health after condemnation by that body as being infected with bubonic plague. Tbe case was tried before a jury and a verdict rendered for tbe plaintiff for $7000. The defendant comes to this Court with a number of exceptions, not all of which, however, need be considered.
The defendant excepted to the admission, against objection, of certain evidence offered by the plaintiff to prove oral statements made by one Berg, a clerk in the employ of Bishop & Co., the defendant’s local agents, to the plaintiff on an occasion when the latter with his attorney called at Bishop & Company’s office to give notice of claim for the amount of the insurance. These statements were to the effect that the insurance company would not pay the insurance'. Defendant also excepted to the refusal of the court to’ direct a verdict for the defendant on the ground, among others, that proofs of loss were not presented within the time required by the terms of the policy and that no sufficient excuse in law for a failure to present them within the time mentioned in the policy had been shown, and to the modification by the court of an instruction requested by the defendant on the subject of proofs of loss, by which modification it was left to the jury h> determine whether or not there had been a waiver by the company of the requirements of the policy concerning the filing of such proofs.
[23]*23The evidence sliows beyond doubt that proofs of loss were not filed until March 29, 1900, more than sixty days after the fire. The requirement of the policy is that such proofs be filed within sixty days after the- fire. The only excuse suggested for the failure to present the proofs within the sixty days is that during all of said period the plaintiff, by reason of the death of a member of his family and the loss of his property and for other causes, became ill and mentally incapacitated to such an extent that he was unable to attend to' his ordinary business affairs. Assuming that these facts, if proven, would constitute a sufficient excuse in law, we are of the opinion that the evidence adduced was clearly insufficient to Avarrant the jury in finding that the plaintiff Avas thus incapacitated. It may be added that the undisputed testimony of one of plaintiff’s witnesses shows that on March 16, five days before the expiration of the time limited, plaintiff handed the insurance policy to his attorney for collection and that on the same day the latter gave to Bishop & Co', notice of the loss.
It is contended by counsel for plaintiff that the failure to' file proofs within the sixty days can not avail as a defense to this action for two reasons: (a) because it is not provided in the contract that the policy shall become void in case of such failure and the only penalty is that the right to bring an action on the policy is postponed until after such filing, Avhether before or after the expiration of the sixty days, and (b) because the insurer waived the requirements of the prorfsion in question.
It has been held by some courts that if a policy of insurance provides that proofs of loss are to be furnished Avithin a certain time after loss has occurred, but does not impose a forfeiture for failure to furnish them Avithin the time prescribed and does impose a forfeiture for a failure to comply with other provisions of the contract, the insured may maintain an action, though he does not furnish proofs within the time designated, providéd he does furnish them at some time prior to> commencing the action upon the policy; (see, for example, 4 Joyce Ins. 3282 and Steele v. Ins. Co., 93 Mich. 81) and that to prevent forfeitures, courts [24]*24are bound to- construe such contracts as strongly against tbe insurer, and as favorably for the insured, as their terms will reasonably permit. Vangindertailen v. Insurance Co., 82 Wis. 117. The weight of authority, however, is to the effect that such provisions with reference to the filing of notice or proofs of loss within a specified time, must, unless waived, be strictly complied with, not. only as to the substance of such notice and proofs but also as to time, that their performance is a condition precedent to the right of action and that a failure to present such notice or proofs within the prescribed time, is, in the absence of waiver, a violation of the provision such as to bar a recovery on the policy. “The conditions in policies requiring notice of the loss to- be given, and proofs of the amount to be furnished the insurers within certain prescribed periods, must be strictly complied with to enable the assured to- recover. * * * The contract of insurance is a voluntary one, and the insurers have a right to designate the terms upon which they will be responsible for losses.” Riddlesberger v. Insurance Co., 7 Wall. 386, 390. See also 2 Wood on Insurance §437; Owens v. Insurance Co., 57 Barb. 521; Blossom v. Insurance Co., 64 N. Y. 162, 165; Quinlan v. Insurance Co., 133 N. Y. 356, 362; Bank v. Surety Co., 87 Fed. 188, 123, 124; Knudsen v. Insurance Co., 75 Wis. 198, 202; Gould v. Insurance Co., 90 Mich. 302, 305; dissenting opinion of Grant, J., in Steele v. Insurance Co., supra; Scammon v. Insurance Co., 301 Ill. 621; May, Insurance, §465; Ostrander, Insurance, 2nd ed., §§338, 339, 340, 221, 222, 223; Bowlin v. Insurance Co., 51 Minn. 239. Whether or not in any particular case the filing of proofs of loss within tire time specified is a condition precedent to a right of action, depends upon the intention of the parties as disclosed by the language of the- contract under consideration. Tn the contract in the case at bar it is provided: “If fire occur the insured shall give immediate notice of any loss * * * and, within sixty days after the fire * ‘ * * shall render a statement to this company, signed and sworn to by said insured,” etc., (this statement being what is known as “proofs of' [25]*25loss”); also, “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 language is clear and explicit. The filing of proofs of loss mthin sixty days is one of the requirements full compliance with which is necessary before an action can be maintained. A filing of such proofs after the expiration of sixty days is not full compliance with the provision. Although there is some authority to support it (see Steele v. Insurance Co., supra), the distinction does not appeal to us as being sound which is sought to be drawn between cases where the words “until after” are used, as in that at bar, and those where the word “unless” is used in their stead. In each instance the meaning of the words “full compliance” is the same.
“Almost without exception the courts of this country and England have held that proofs of loss must be furnished as provided by the policy, or the insurer would be discharged. Among jurists and text writers who have been called upon to discuss this question during the more recent period of the evolution of the insurance contract, there has been a consensus of opinion in agreement with this proposition, until we reach the case of Kenton Insurance Co. v. Downs (13 S. W. 882, Ky.); and in justice to the Court of Appeals of Kentucky, who heard that case, it is proper that we should mention that, so' far as the reports disclose, the policy in that suit did not make its conditions and requirements a part of the consideration, nor does it appear that there was any general clause making the liability of the company to pay a loss contingent upon the performance by the insured of all or any of the requirements concerning proofs.”— Ostrander Ins. (2) §338.
“AVliere the consideration for the insurance is in part money and in part the promised performance of the conditions and requirements of the policy, the obligation of the insurer to pay the loss rests entirely upon the performance of such condition and requirements by the insured, and when notice or proofs of loss are required to be furnished within any particular time, as 10, SO or 60 days, a failure to comply will be fatal. Unless waiver can be shown, a partial performance will not be sufficient. [26]*26The money part of the consideration having been paid does not create an obligation on the part of' the insurer to' pay a loss. It is stipulated that the insured must do certain other things which may be of equal or even greater importance than the payment of the premium. These requirements of the policy may refer to matters affecting the character of the hazard, or to things which the insured is to do subsequent to the loss.” — It. §340.
“When it appears from the language employed that it is the intention of the parties that payment of a loss will depend on the performance of any particular thing by the insured, and when such stipulations and requirements are made a part of the consideration for the promise or engagement of the insurer, there can be ho recovery under the policy, unless the insured shows such performance. The question of materiality cannot be raised. That which is required to be done has been made material by the agreement of the parties.” — It.
The promise now sued upon was made as set forth in the policy “in consideration of the stipulations herein named and of one hundred and forty dollars premium.” This fact, together with the above quoted provision as to no suit being sustainable until after full compliance, etc., bring the case at bar within the principles stated by Ostrander. The requirement as to the filing of proofs withm the time stated, was made by the parties themselves a material one and a condition precedent to the right of recovery.
The courts which hold that, notwithstanding’ the time limit expressed in the policy, proofs of loss may be filed at any time before the commencement of the action, do not go to the extent of holding that the filing of such proofs is not an essential; they still recognize that such filing is a condition precedent to a right of action. It is merely the ti/me which they hold to be immaterial. In the policy in the case at bar, the requirement as to filing within 60 days is accompanied by the qualification, “unless such time is extended in writing by this company.” To our minds this language further indicates clearly that it was the intention and understanding of the parties that the time limit could be extended only by the party and in the manner stated, i. e., by the company, in writing, and not otherwise. To hold [27]*27that an action may be maintained if proofs are filed after 60 days but at any time before the commencement of the action, would be to extend the time against the will of the company and without writing, — something entirely contrary to the expressed agreement of the parties. It would be making a new contract for the parties and this clearly the court can not do*.
As to waiver. The only evidence which is claimed to show a waiver is that of the oral statements by Berg to the effect that the insurance company would not pay the amount of the loss. It is not pretended that any communication in writing constituting a waiver, passed from the defendant or any of its agents to the plaintiff or that any officer of the defendant orally or otherwise waived the provision. It is true that it has been held in many cases that a refusal to pay or denial of liability, within the time specified for the filing of proofs, is a waiver of the requirements of such proofs, but those evidently are cases in which the policies contained no limitations on the power of agents to orally waive any of its provisions, — at least, the question of the effect of such limitations does not seem to have been considered or referred to' in those cases. In the case at bar, however, the policy contains this provision: “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no agent or other representative of this company, except an officer of this company, shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no agent or othér representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto', nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. No act, or statement of any officer, agent, or other representative, [28]*28nor act or statement made by any such officer, agent or representative, shall operate as an estoppel upon, this company, or in anywise affect this insurance, or the validity of this policy, unless such act or statement shall be by this company in writing endorsed upon this policy.” That such a stipulation may be entered into by the parties to a contract of insurance, is well settled. Cleaver v. Insurance Co., 65 Mich. 527, 532; Gould v. Insurance Co., supra; Gladding v. Insurance Association, 66 Cal. 6, 8; Knudson v. Insurance Co., 75 Wis. 203; Kyte v. Assurance Co., 144 Mass. 43, 46. The insured, as well as the insurer, is bound by the terms of the contract. He has express notice that the agent is without power to waive except in writing and should govern himself accordingly. See cases last cited; also Hankins v. Insurance Co., 70 Wis. 5, 6; Insurance Co. v. Coos County, 151 U. S. 452, 462, 463. To hold that what Berg orally said to plaintiff, whether such statement is designated a denial of liability or whatever else; constituted a waiver or estoppel, would be to render the provision last quoted useless and nugatory and to make a new contract for the parties.
The only theory upon which the verdict of the jury can be explained is that they found that defendant waived the requirement in question. Such finding was without evidence to support it.
Under the practice established in this jurisdiction judgment non obstante veredicto may be ordered for the defendant as well as for the plaintiff and on the evidence as well as on the pleading’s when the facts are undisputed. See Estate of Kamaka, 9 Haw. 245; Choy Look See v. Royal Ins. Co., just decided by this court, ante, p. 5. The facts are undisputed in the case at bar so far as the questions of the filing of proofs of loss and of waiver are concerned. On the undisputed evidence-on these points, a verdict should have been directed for the defendant.
The exceptions considered are sustained, the verdict set aside and the case remanded to the Circuit Court of the First Circuit [29]*29with directions to enter judgment for the defendant non obstante veredicto.
Andrews, Peters & Andrade for plaintiff.
Hatch & Sillmian for defendant.