
    Charles H. Cole, Plaintiff, v. The Preferred Accident Ins. Co. of New York, Defendant.
    (Supreme Court, Kings Trial Term,
    March, 1903.)
    Accident insurance — Presumption of payment of premium — Waiver of proofs of death — Limitation of the right to sue — Policy when construed favorably to the insured.
    Possession by the insured at the time of his death of a policy of accident insurance raises á presumption that he had paid the premium.
    The insurer’s immediate repudiation of any liability under the policy excuses compliance by the beneficiary with a condition antecedent to a recovery thát proofs of death must be furnished within two months of the date of death.
    A proviso of the policy that “ No legal proceedings for a recovery hereunder shall be brought within three months after the receipt of such proofs at the office of said Association, nor at all unless begun within six months from the date when said Association shall have received such proof” must be strictly construed; and cannot, where service of proofs of death has been thus excused, be deemed a limitation of the time to bring an action.
    An insurance policy, when susceptible of two constructions, must be construed in the way most favorable to the insured.
    Action to recover for death by accident on an accident insurance policy for $5,000. The policy was dated August 10, 1892, and the death occurred September 29, 1892. Only the first premium had accrued.
    At the close of the evidence for both sides counsel for defendant claimed there was no question of fact and moved for a direction of a verdict for defendant.
    Plaintiff’s counsel claimed there were three questions of fact for the jury, and the court submitted the same to the jury, and received a special verdict in favor of the plaintiff thereon, finding (1) that noticé of the death by accident was given as required by the policy, (2) that the defendant in answer thereto replied that the policy was void, and that there was no liability thereunder, for the reason that the premium had not been paid, and (3) that the' beneficiary believed the said statement and was induced thereby to neglect to furnish the defendant with formal proofs of death within three months after the accident as required by the policy.
    All other questions were left to the court, and both sides moved for judgment on the special verdict.
    I. R. Oeland for plaintiff.
    W. G. Wilson for defendant.
   Gaynor, J.:

At the close of the evidence the defendant claimed that there was no question of fact for the jury and moved for a direction.of a verdict in its favor. The plaintiff claimed that there were three questions of fact. A special verdict was taken thereon, and the finding was in his favor. This left all other questions of fact, if there be any, to the court, as well as the questions of law; and both sides moved for judgment on the special verdict. There are three questions to be passed upon.

1. The plaintiff introduced no direct evidence to show payment of the first premium (the only one which had accrued, the policy being dated August 10, 1892, and the death happening on September 29th next following). But the fact that the deceased had possession of the policy at the time of his death made out a presumption of payment of the premium; and this presumption was not as matter of law overcome by the evidence for the defendant. Both sides left the question of payment of the premium to the court instead of submitting it to the jury.

2. The policy contains a requirement that formal proofs of death from accidental causes should be furnished to the company within two months after the date of death, as a condition precedent to a right of action to recover upon the policy. Such proofs were not furnished; but the claim of the defendant, made immediately on receipt of notice of the death by accident (given as required by the policy), that it was not liable on the policy at all, was a waiver thereof (Joyce on Ins. §§ 3257, 3373).

3. The policy also contained the following provision, based on the said formal proofs of death:

“No legal proceedings for a recovery hereunder shall be brought within three months after the receipt of such proofs at the- office of said Association, nor at all unless begun within six months from the date when said Association shall have received such_proof.”

This three months postponement of the right to sue, and six months limitation thereof, is predicated on the receipt of such proofs. But in this case they were not furnished to the defendant, having been waived by it. Such limitation was therefore never set running, any more than such postponement was brought into operation. It has to be construed strictly (May on Ins. 4th ed. §§ 449, 491; Griffey v. New York Cent. Ins. Co., 100 N. Y. 417; State Ins. Co. v. Maackens, 9 Vroom 564). There is no provision in the contract that if such proofs be waived and not furnished, the limitation shall start from the date, of death, or of such waiver, and it cannot be imported into it (Boynton v. Middlesex Fire Ins. Co. 4 Metc. 212; Landis v. Home Mut. Fire Ins. Co. 56 Mo. 591; Bartlett v. Union Mut. Fire Ins. Co. 46 Me. 500; Williams v. Ins. Co. 29 id. 465; May on Ins. § 491).. Our Court of Appeals has said in respect of a similar limitation, without having to decide the question, viz.: “ It is at least doubtful whether in strictness the limitation applies except in case an award is made fixing the amount of the claim ” (Hay v. Star Fire Ins. Co. 77 N. Y. p. 242). Moreover, the policy is at best open to two constructions in the respect in question; and this requires, under a settled rule of construction applicable to insurance contracts, that the construction which favors the insured shall be adopted (Gough v. Davis, 24 Misc. Rep. 247; Darrow v. Family Fund Society, 116 N. Y. 537; May on Ins. § 175).

Judgment for the plaintiff for $5,000, with interest from September 30th, 1892.  