It will be readily understood that the decision of this case depends entirely upon the construction to be given to the quoted provisions in the policy of insurance issued to the plaintiff below. There was no conflict in the testimony introduced. It showed conclusively that the plaintiff had contracted tuberculosis some time prior to April, 1930; that for a long time he had endeavored to go to his office and do his work. His physician would put him to bed, but when he felt better he would get up and try to perform his usual duties, but that from and after April 1, 1930, he was never able to work at all. But as the days lengthened into weeks and weeks into months, he yet entertained that hope which "springs eternal in the human breast" that he would get well again and get back to his work. It was shown that this hope is one of the peculiar susceptibilities (shall we call it, rather than symptoms?) of the tuberculosis sufferer, and sustains and strengthens him as he fights his grim and losing battle against the great White Plague. So he kept his insurance paid up, and did not apply for his monthly benefit until November, 1932, when, upon application for his past benefits, he was met by the claim of the defendant company that such benefits did not accrue until after he had filed the proofs called for in the policy of insurance.
This is a most interesting question. Shall the benefits begin, under this contract, from the date of the disability or from the date of the proof thereof? Stated in another form, the question is whether proof of disability is a condition precedent to the liability of the insurer or only a condition precedent to suit on the policy? The decision of the entire case depends upon the proper construction of the contract of insurance in this record. If appellant is correct in its construction, then its general exception should have been sustained, while, on the other hand, if appellee be correct in his interpretation, then the record fully supports the judgment of the trial court.
Appellant depends, and the majority opinion rests, in a large measure, upon the decision of the Supreme Court of the United States in the case of Bergholm v. Peoria Life Insurance Co., 284 U.S. 489, 52 S. Ct. 230, 76 L. Ed. 416. This case reached the Supreme Court because of a supposed conflict between the decision of the Circuit Court of Appeals for the Eighth Circuit in the case of Minnesota Mutual Life Insurance Co. v. Marshall, 29 F.2d 977, and the decision of the *Page 766 Circuit Court of Appeals for the Fifth Circuit, 50 F.2d 67, in the Bergholm Case. While the distinction between the two cases is what might be called a "hair line" distinction, yet the Supreme Court recognized it and held in effect that the language of the Marshall policy provided for liability to commence and depend upon the occurrence of the disability and not upon the receipt of notice. A comment upon the Marshall decision by the Supreme Court is: "The pertinent provisions of the policy there, however, differ from those found in the policy here under consideration." (The Bergholm policy). "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 disability * * * the Company will waive the payment of all premiums thereafter coming 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."
The provision for waiver in the Bergholm Case was "upon receipt by the Company of satisfactory proof that the Insured is totally and permanently disabled as hereinafter defined the Company will" (1) Pay premiums. (2) Pay monthly indemnity.
The effect of the action of the Supreme Court is therefore to let both decisions stand as the settled law of the land.
Chief Justice McClendon, of the Austin Court of Civil Appeals, in a case based upon the identical provisions in the policy in the case at bar, held, after quoting at length from the Bergholm and the Marshall Cases, that the construction was ruled by the Marshall decision. Recognizing the fact that "authorities in other jurisdictions are not in accord upon the question," he concludes that "those in this state, which we think are supported by the better reasoning, hold that the waiver took effect at the time of the disability, and did not depend upon the time when proof thereof was furnished" — citing the Marshall Case (C.C.A.)29 F.2d 977, MidContinent Life Insurance Co. v. Hubbard (Tex. Civ. App.)32 S.W.2d 701, and other authorities. See State Life Insurance Co. v. Barnes (Tex. Civ. App.) 58 S.W.2d 189, 190. The learned Chief Justice took occasion in this case to suggest that: "If appellant, the author of the language of the policy, had intended to make the notice and proof of liability a condition precedent to effectiveness of the waiver, apt unequivocal language to that effect was available and should have been employed. Absent which the rule is applicable that, `where the terms ofa policy are of doubtful meaning, that construction most favorable to theinsured will be adopted'" — again citing the Bergholm Case, supra. (Italics mine.) The fact that trial courts, Courts of Appeal, and Supreme Courts differ as to the construction to be placed upon the language of this contract seems to the writer to be convincing argument that the language is of "doubtful meaning."
The phraseology of the policy in the Marshall Case and that of the case at bar are not exactly the same, it is true, but the legal effect is certainly the same, while that of the Barnes Case is identical.
In the case of Jefferson Standard Life Insurance Co. v. Williams,62 S.W.2d 661, this court, speaking through Justice Lattimore, held that a policy containing provisions quite similar to those in the Bergholm Case was not ambiguous, and that the waiver depended upon the proof of disability, and that the failure to furnish such proof was a violation of the terms of the policy. An inspection of the policy will readily disclose the difference between it and the one here considered. He does distinguish the case, however, from that class of cases where the absence of proof of disability is accounted for by proof of insanity or physical disorder rendering the insured incapable of giving any notice to the insurer, and appellant cites the case as authority for its position in this case. It seems to be directly in line with the Bergholm decision, for the provisions of waiver are practically identical.
The writer has carefully considered the briefs and arguments of counsel, and has reached what seems to him to be not only the legal conclusion of the matter, but what we may call a "common sense" solution of a somewhat vexed problem.
Appellant sold and appellee bought certain protection against the common enemies of all mankind; death and disability. The insured met with disability early in 1930. Not recognizing his condition, but *Page 767 buoyed up by false hope, he delayed making his claim at the time, and, like a valiant soldier, fought his enemy to the last ditch, doubtless believing all the time that he would finally win the battle, but probably resting securely under the conviction that if he lost in the end, upon proper proof being made, the insurer would pay his $50 per month. This, I think, he is entitled to under the law of this state, as well as the common sense of the question. It is what he bought and paid for, in my judgment.
I think the judgment of the trial court should be affirmed.