ON SUGGESTION OF ERROR. This cause was affirmed on a former day of this court by Division B; the opinion appearing in volume 142 Southern Reporter, at page 445.
On suggestion of error, there was a difference of opinion among the judges of Division B as to the correctness of the original decision, and the judgment was set aside and the cause was argued before the other division and considered by the court in banc.
After a full consideration of the case, the majority of the court is of the opinion that the former decision was correct.
The former opinion might be sufficient to rest upon in this case. But, as it was stated in the former opinion that the authorities in other states were conflicting, and that this state decided the question involved in New York Life Ins. Co. v. Alexander, 122 Miss. 813, 85 So. 93, 15 A.L.R. 314, and that case was authority for the decision in the case at bar, and inasmuch as it was insisted in the suggestion of error that the decision in this case was in conflict with the decision in National Casualty Co. v. Mitchell, 162 Miss. 197, 138 So. 808, we desire to say that *Page 418 the majority of the court thinks there is no conflict between the decision of the National Casualty Co. v. Mitchell, supra, and the case at bar, or in the authorities relied upon to support same.
In our opinion, they are clearly consistent with each other. In the case at bar, in addition to the clause set out in the original opinion, the policy provides that, if the premiums are not duly paid, the policy shall cease, except as provided in the nonforfeiting provisions of the policy. In the total disability benefit clause set forth, there was no stipulation with reference to the time in which certain matters were to be done and proof furnished by the insured, except that it must be done while the policy was in force. As stated, the company did not waive payment of premiums on the happening of the disability therein provided for. The premium was only to be waived when proof of such disability was furnished to the company, which proof must be reasonably sufficient to satisfy the company that a disability had occurred. Until and unless such proof was filed, there was no waiver of premiums, and no accrual of benefit. If the premiums were continued to be paid the proof of disability could be made at any time, and was not limited to any specific time. It is difficult to see how section 2294, Code 1930, can have any application whatever.
We think the decision in this case, and that in the case of New York Life Ins. Co. v. Alexander, supra, are supported by the decision of the United States Supreme Court in the case of Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416. This decision affirmed a judgment of the federal circuit court of appeals reported in 50 F.2d 67. We quote from the United States Supreme Court as follows:
"Beginning with February 27, 1927, premiums were to be paid quarterly, with a grace period of one month from any due date, during which period the policy was to continue in full force. In case of total and permanent *Page 419 disablement there was a provision for payment of a monthly income for life of one per cent of the amount of the principal sum. The policy expressly provided that `if any premium is not paid on the date when due, this policy shall cease and determine, except as hereinafter provided.' The income disability clause which follows this language, provides: `Upon receipt by the Company of satisfactory proof that the insured is totally and permanently disabled as hereinafter defined the Company will
"`I. Pay for the insured all premiums becoming due hereon after the receipt of such proof and during the continuance of the total and permanent disability of the insured and will also
"`2. Pay to the Insured a Monthly Income for life of one per cent. of this Policy; the first payment of such income to be paid immediately upon receipt of such proof. . . .
"`3. . . . To entitle the Insured to the above Total and Permanent Disability Benefits this policy at the time of making claim for such benefits must be in full force and all premiums becoming due prior to the time of making claim must have been duly paid. . . .'
"The insured died on April 18, 1929. Judgment was sought for disability benefits from December 1, 1927, to April 1, 1929, at the rate of fifty dollars per month, with interest. The last premium paid was due on May 27, 1927. The next, allowing a month's period of grace, should have been paid not later than September 27, 1927. Neither that nor any subsequent premium was ever paid. Long prior to the death of the insured, the policy therefore had lapsed, unless saved by the terms of the disability clause above quoted. There is evidence in the record from which it reasonably may be found that the insured was totally and permanently disabled from a time before the premiums first became in arrears, and that this condition continued until his death; but no *Page 420 proof thereof was furnished to the company. The petitioners, nevertheless, contend that this is enough to bring into effect the promise of the company to pay the premiums which became due after the disability began. In support of this contention, Minnesota Mut. L. Ins. Co. v. Marshall [(C.C.A.) 29 F.2d 977], supra, is cited. The pertinent provisions of the policy there, however, differ from those found in the policy here under consideration. There the policy provided that if the insured, while the policy is in force and before default in payment of premiums, `shall become totally and permanently disabled . . . and shall furnish satisfactory proof thereof, the Company will waive the payment of premiums thereafter becoming due,' and that `upon the receipt of due proof of total and permanent disabilities . . . the Company will waive the payment of all premiums thereafter becoming due.' The court held that the waiver took effect at the time of the disability, and did not depend upon the time when proof thereof was furnished. We do not need to controvert this construction of the words quoted, or question the soundness of the view of the court that the existence of the disability before the premium became in arrears, standing alone, was enough to create the waiver. In that view, the obligation to furnish proof was no part of the condition precedent to the waiver; but such proof might be furnished within a reasonable time thereafter. Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof. The provision to that effect is wholly free from the ambiguity which the court thought existed in the Marshall policy. Compare Brams v. N.Y. Life Ins. Co., 299 Pa. 11, 14, 148 A. 855. It is true that where the terms of a policy are of doubtful meaning, that construction most *Page 421 favorable to the insured will be adopted. Mutual L. Ins. Co. v. Hurni Packing Co., 263 U.S. 167, 174, 68 L.Ed. 235, 31 A.L.R. 102, 44 S.Ct. 90; Stipcich v. Metropolitan Life Ins. Co.,277 U.S. 311, 322, 72 L.Ed. 895. This canon of construction is both reasonable and just, since the words of the policy are chosen by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings."
See, also, 1 Joyce on Insurance, secs. 1100, 1103, and 1106, and case note in 15 A.L.R. at page 318; Brotherhood of Railroad Trainmen v. Bridges (Miss.), 144 So. 554.
The judgment of the court below will be affirmed.
Affirmed.