It may be that the trial court had no jurisdiction to consider the question of lump sum settlement, since the Industrial Accident Board had not first passed upon this question, and approved it. Article 5246 — 33, V. S. Employers' Indemnity Corporation v. Woods (Tex.Com.App.) 243 S.W. 1085. If the court had no jurisdiction to render a lump sum judgment for the Malones, then a judgment over against the Janes Contracting Company cannot by this court be sustained.
I am of the opinion that appellants' first and fourth propositions are well taken. "By the terms of the policy the Workmen's Compensation Law, Act March 28, 1917, was made a part of same." There was no provision for forfeiture. This act, article 5246 — 84 thereof, provides that such insurance companies as appellee may issue such policies to employers, and upon doing so the latter is qualified the same as if he became a subscriber to the Industrial Accident Association of Texas. The record shows that this policy was written upon verbal application. No claim of misrepresentation; so, if the Janes Contracting Company had paid the proper premiums by so doing, the insurer became liable. The policy provides that, if a less premium has been paid than the class of work engaged in by employees calls for, the insurance company may collect the excess, and likewise, if the employer pays more than the law requires, he may likewise recover it back. The law contains the same provisions as to the association. The evidence being uncertain as to whether full premium has been paid, the case should be reversed, with instructions to the trial court to determine that question alone; if paid, then judgment should be entered for Janes Contracting Company, if not paid theretofore, the latter be given reasonable time within which to pay to save the insurance.
The fourth proposition is likewise sound. The policy contains the provision that —
"If there should be any change in or extension of the employer's trade," etc., "the earned premium therefor should be adjusted at the company's manual rates respectively applicable thereto."
Then this provision in the policy substantially follows the statute above quoted as to proper adjustment of the premium.
Statutory provisions become a part of the policy, and bind both parties. Life Ins. Co. v. Hopkins (Tex.Civ.App.) 219 S.W. 254.
An insurance policy will be construed strictly against the insurer, and in case of any doubt, ambiguity, or uncertainty in its terms it will be resolved in favor of the *Page 1009 insured. Ocean A. G. Cor. Lim. v. Northern Trac. Co. (Tex.Civ.App.)224 S.W. 212.
For the reasons assigned I enter my dissent. The motion for rehearing should be granted, and the cause reversed, with instructions to the trial court to inquire into the fact whether or not the proper premium to cover blasting had been paid, the record here not being conclusive upon this question; and, if paid, judgment should be rendered for defendants; if not, they be given an opportunity to pay.