The opinion
HICKENLOOPER, Circuit Judge
(dissenting).
I concur in the conclusion that death, under the circumstances detailed in the foregoing opinion of the court, was eov *728 ered by the policy and -within, the risks against which appellant insured. "Whatever interpretation may properly he given to the general insuring provision where death occurs as the result of a major surgical operation [Pope v. Prudential Ins. Co., 29 P. (2'd) 185 (C. C. A. 6)], part Gr and oíanse 22 of the policy here involved relate specifically to septicemia and pyogenic infections, and thus, by familiar rules of construction, remove" these subjects of consideration from the general insuring provision, unless the phrases, "subject to its terms, limits and conditions” and “effected as hereinbefore provided,” may be said to inject into these sections also, the condition that the wound through which infection enters must not only be accidental in the popular sense; but also wholly disconnected with any intentional aet of the insured. Practically all accidental euts or wounds are directly connected with the performance of some intentional aet, working, walking, running, playing, shaving, and the like; and to say that, because the injury, itself purely accidental, was attended by the doing of some sueh intentional aet, it is therefore excluded from the operation of the policy under the quoted phrases, is indeed wholly foreign to popular construction of the passages involved.
Part Gf states that the policy covers in the event of death from septicemia “due directly to injuries effected as hereinbefore provided.” Clause 22 extends the coverage to “pyogenic infections which shall occur simultaneously with and through an accidental cut or wound effected as hereinbefore provided.” To me these apparently mean that, where an infection is the basis of claim, as distinguished from the accidental cut or wound, the poliqy covers if the infection occurs simultaneously with, and the seat of infection is found in, such purely accidental cut or wound, although the cut or wound itself is suffered while in the doing of an intentional act. Such is the plain, simple, common sense, and popular constraetion which practically every prospective purchaser of a policy would give to its proviáons, and as such should be followed. Canton Ins. Co. v. Indep. Transp. Co., 217 F. 213, 214 , L. R. A. 1915C, 408 (C. C. A. 9). No insurer should be permitted to sell a policy so susceptible to one constraetion by the insured, and to escape liability by subtle phraseology and niceties of interpretation, under which the meaning now claimed is far from obvious upon unstudied reading. Needless to say, all doubts should be resolved against the insurer. Thompson v. Phenix Ins. Co., 136 U. S. 287 , 10 S. Ct. 1019 , 34 L. Ed. 408 ; Liverpool, etc., Ins. Co. v. Kearney, 180 U. S. 132, 136 , 21 S. Ct. 326 , 45 L. Ed. 460 ; Schambs v. Fidelity & C. Co., 259 F. 55, 58, 59 , 6 A. L. R. 1231 (C. C. A. 6).
I am further of the opinion-that the death here involved is within even the general insuring provision. The numerous eases con-" struing the phrase, “effected through accidental means,” can only be reconciled upon the principle that death or injury is caused by accidental means if some accident, unforeseen circumstance, mishap, 'or casualty intervenes between the intentional aet and the death or injury. This was made the basis of decision in U. S. Mutual Aco. Ass’n v. Barry, 131 U. S. 100 , 9 S. Ct. 755 , 33 L. Ed. 60 , and practically all cases, whether recovery was allowed or denied, may be so reconciled; just as, in practically all, the insured was engaged in some intentional aet when injured." Here we have the intervention of accident or mishap in the unexpected tearing of the mucous membrane, providing a “port of entry”; the fact of sueh tear being reasonably inferable, I think, from the evidence. This tear was unanticipated and unforeseen, was not itself an injury for wbioh recovery is sought, for its cause was an intentional act; but it .may and should be regarded as the intervening and efficient accidental cause of death of the insured, for whieh compensation is sought. It is thus in itself an “accidental means,” independent of the antecedent intentional act as a factor of causation. I therefore feel that for both reasons the finding of liability under the policy is correct.
I cannot concur in the conclusion that, if it be conceded that plaintiff had a valid claim under the policy, such claim was lost by failure to file proofs of loss within ninety days. It is true that clause 7 provides that “affirmactive proof of loss” must be furnished to the company at its said office within ninety days after the date of such loss, and clause 23 provides that failure to comply with any of the requirements contained in the policy shall invalidate all claims thereunder. Clause 6 provides that the company will furnish forms for filing proofs of loss, upon receipt of notice, and, if sueh forms are not so furnished within fifteen days, the claimant shall be deemed ite have complied with the requirements of the policy in this respect upon submitting, within the time fixed, written proof “covering the occurrence, character and extent of the loss for which claim is made.” There is no other definition of “proof of loss” than is to be gathered from these passages. Time is not made of the essence of the contract. The position of the appellant can be *729 sustained in this ease only by placing upon these provisions the extremely technical construction that proofs of loss must be made only upon blanks furnished by the company if such blanks are furnished to the claimant within fifteen days after notice of loss, and such formal proofs must be positively completed and punctually filed within ninety days, notwithstanding intervening difficulties, and regardless of the sufficiency of other notice or the completeness of its detail. Forfeitures are not favored, and, unless forced so to do by clear and compelling language, the courts should not thus defeat an otherwise meritorious claim.
The sole purpose of proofs of loss is manifestly to advise the company promptly and precisely of the nature of a claim of liability. Immediately the claimant was advised of the existence of the policy, written notice was given to the defendant. This letter was in the possession of the company and was not produced at the trial, although it is in evidence that it was mailed and received. Certain it is that there is not one word of evidence in the reeord that the company was not fully, definitely, and formally advised of all the elements of “occurrence, character and extent of the loss,” or that it was deprived of any substantial right by slight delay in filing proofs on the company’s forms.
The defense is an affirmative one, and the burden was upon the company to prove that it had received no proofs of loss within the ninety days, or the nature of the proof it did receive. Had the policy expressly made it a condition precedent to recovery that the plaintiff establish service of proofs of loss within ninety days, doubtless the burden of showing the contents of this letter would have been upon the claimant; but such is not the present situation, and possession of the letter by the defendant, and its failure to produce it, would seem to justify the inference that it contained all the information which the company desired — that it only remained to put such information into formal shape. The plaintiff pleaded in her replication that the provision had been substantially performed, and, since the defendant offered no evidence of its breach, the plaintiff was relieved of proving this allegation in rebuttal. There is no necessity, therefore, to infer or inquire as to the contents of the letter. Upon the pleadings and evidence, the question was explicitly one of the sufficiency of the proofs furnished, in which the defendant had the burden of showing them insufficient and offered no evidence. Cf. Hartford Co. v. Empire Co. (C. C. A.) 30 F.(2d) 794, 802 .
Thus form and formality are preferred to substance, and technicality to susbtantial rights. And this in a case in which no prejudice to the defendant is claimed or shown, and time was not of the essence of the contract, expressly, naturally, or inherently. Under the circumstances disclosed, I am of the opinion that susbtantial compliance was not disproved and forfeiture should not be decreed.