230   RIGHTS AND POWERS OF INSURER

The parties here must be considered to have contracted with reference to this rule of construction, in the absence of any more definitely restrictive language in the contract. It was impossible for the insured to act on account of his insanity. It was equally impossible for the beneficiary to act within the year the policy was in force because she had no knowledge of its existence, or its conditions. The policy contains no limitation of time in which the proof of disability must be presented, or option exercised. The beneficiary did act within a reasonable time under all the circumstances, which is all that was required.

In Woodmen Accident Ass'n v. Pratt. 62 Neb. 673, it was held that strict compliance with the terms of the policy as to election and notice are not required, when the same was impossible of performance, and that, where an accident deranged the mind of the insured so that he could not independently give notice and information regarding the accident and injury within the time stipulated, this excused him from compliance with the conditions of the policy in that regard during the existence of the disability. Though these were accident policies, the same principle applies. * * *

The case of Thorensen v. Massachusetts Benefit Ass'n, 68 Minn. 477, cited by defendant, in which it was held that the insured must exercise the option while the policy is still in force, is dissimilar in its facts, since it does not contain the element of insanity. Apparently there was nothing to prevent the notice being given while the policy was in force and while the insured was a member in good standing of the benefit association. Furthermore, it would be a harsh rule that would say that in a case where a man was injured, so as to be totally non compos mentis, within a few hours before the next payment on his policy became due, and while it was still in force, the occurrence of the very contingency he was insuring against should deprive him, or his beneficiaries, of the benefit of the contract. This seems to us to be the logical result of the Minnesota case, if construed as defendants insist.

Finding no prejudicial error in the record, the judgment of the district court is

Affirmed.4H

48 Accord: Rhyne v. Jefferson Standard Life Ins. Co. (1929) 196 N. Car. 717, 147 S. E. 6, Comment (1929) 14 Minn. L. Rev. 97; Levan v. Metropolitan Life Ins. Co. (1927) 138 S. Car. 253, 136 S. E. 304, Comment (1927) 36 Yale L. J. 1023 (see the exhaustive dissent) ; Old Colony Life Ins. Co. v. Julian (1927) 175 Ark. 359, 299 S. W. 366; Pfeiffer v. Missouri State Life Ins. Co. (1927) 174 Ark. 783, 297 S. W. 847, 54 A. L. R. 600; Rosebery v. American Benev. Assn. (1909) 142 Mo. App. 552, 121 S. W. 785. See also the annotation 54 A. L. R. 611.