[42] The provision of the policy relating to the waiver of premiums is free from ambiguity, and I agree that the only reasonable interpretation to be given it is that announced in the majority opinion. It clearly recites an agreement on the part of the company to waive payment of all premiums payable upon the policy falling due after receipt of proof of thedisability.
[43] But I do not agree that the disability-annuity provision is likewise unambiguous, the numerous so-called "goose cases" from other jurisdictions to the contrary notwithstanding. It stipulates that the company will "Pay to the Insured a Monthly Disability-Annuity as stated on the face hereof; the first payment to be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability."
[44] This stipulation, by adding the word "monthly" to the phrase "the first payment", can be interpreted as the majority has done. However, as written and without the addition, it logically can be construed also as obligating the company for disability benefits from the inception of the disability with the obligation dischargeable or payable only after receipt of due proof. Thus, preceding the semi-colon is a complete sentence expressing unqualifiedly an obligation to pay a monthly disability-annuity. Standing alone this could only mean payment for the entire disability. Then follows a recitation of the method by which the annuity is to be paid, it being that the first payment (not necessarily the first monthly payment) is payable upon receipt of due proof. This first payment, especially since the word "monthly" is not used in connection with it, may well be interpreted as covering all of the disability theretofore experienced, that is from its inception to the date of such first payment.
[45] Being susceptible of two different interpretations, and hence ambiguous, the disability-annuity provision should be given that construction which is most favorable to the insured.
[46] For these reasons I respectfully concur in part and dissent in part.
[47] MOISE, Justice (dissenting).
[48] Following the theoretical standard of prior interpretation without looking to the concrete conditions prevailing should not be exclusive of all other means of relief. One must separate the essentials of the contract, the prime motives thereof, and the incidentals. The insured purchased a policy, the prime motiveand essential was to protect himself during permanentdisability, and like all other insurance contracts, his protection began from the moment that the contract was completed, that is, the delivery of the policy, coupled with the payment of the premium. An incidental to the contract was the method to be effected in order to insure payment in case of disability — the submission of proof to the company. I do not believe that the contract should be interpreted so that a mere incidental payment should be made to supersede the policy provisions and the prime motive of the assured for its purchase.
[49] The rule of reason should be applied here as is applied to policies of life and fire insurance. On such policies, after the payment of the premiums, the company contracts to pay the amount specified in the policy after death, and on a fire policy, the loss sustained by fire. Here, we have the essentials of the contract but the incidentals of the payments of these contracts are proof of death and of loss sustained through fire.
[50] Article 1764 of the Revised Civil Code, dealing with what subject matter of contracts is to be considered provides: "Accidental stipulations, which belong neither to the essence nor the nature of the contract, but depend solely on the will of the parties. The term given for the payment of a loan, the place at which it is to be paid, and the nature of the rent payable on a lease, are examples of accidental stipulations."
[51] The concrete essential of this contract is protection during disability and the accidental stipulation is the method of procedure in order to obtain the prime motive thereof, the submission of proof of disability. The condition for payment is that the policyholder should be under 60 years of age and there be no default in payment. The denial of payment by the company when there is a default in premium or the assured is over 60 years of age is the proper denial of liability. But here we have a provision of the policy that the effective date of payment shall be on the submission of proof and all prior payments during disability have been forfeited. The words "effective date" have been interpreted retroactively to deny the prime motive of the contract and the construction given as to the waiver of premium by the company gives to this company the unjust enrichment of the payments that plaintiff has made during disability.
[52] For these reasons, I respectfully dissent.