dissenting:
The majority opinion enunciates a doctrine so contrary to my conception of fundamental principles of law that I am compelled to dissent.
The notice of motion alleges that a certain sum of money is due the plaintiff by virtue of a certain contract of insurance, bearing date January 20, 1932, and concludes as follows: “* * * and that you have failed to pay me the aforesaid amounts as herein claimed, which said amounts are payable to me under my contract of insurance as aforesaid, the original of which said policy I shall cause to be filed with the original of this said notice of motion for judgment in the clerk’s office of the Circuit Court of Mecklenburg county, Virginia, and shall at the time and place above stated move said court for a judgment against you in my favor as aforesaid.”
There was filed in the clerk’s office with the notice of motion a contract of insurance bearing the date stated. In that part of the notice of motion quoted in the majority opinion, a five year term policy bearing date January 20, 1927, was only incidentally mentioned, and then only as a part of the consideration for the issuing of the new insurance contract.
To this notice of motion the defendant filed a plea of the general issue. One of the grounds of defense is stated thus: “(1) That the plaintiff is not entitled to the disability benefits provided for in the policy sued on (a) because he was not totally disabled, within the meaning of the *480policy, during the time for which claim is made, and (b) because the alleged disability did not result from bodily injury or disease which occurred after the issuance of the disability provision relied upon and after the payment of the initial premium under said policy.”
The proof showed that plaintiff’s disability had continued since on or about October 1, 1931, more than three months prior to the issuing of the contract upon which this action was founded. When this appeared plaintiff undertook to prove that another policy had been issued by the defendant to him bearing date January 20, 1927. To the introduction of this policy the defendant objected. This objection was sustained. Plaintiff’s attorney then stated to the court that the contract of January 20, 1932, was but a continuation of the contract of insurance bearing date January 20,1927.
Thereupon the following colloquy took place between the court and counsel:
“Objection sustained. You only sued on the 1932 policy. You are limited to the 1932 policy. You cannot use the other except to show that the last policy was issued for a valid consideration, namely, the surrender of the previous policy.”
“The Court: My ruling is that you cannot go back of the date of this policy to show disability.
“Mr. Turnbull (attorney for defendant): Your Honor holds that they are bound by the policy of 1932, the policy that they are suing on?
“The Court: Yes, my ruling will show that the court’s ruling is that under the pleadings in this case, you are limited to the policy upon which you sued, which was issued in January, 1932, and that these gentlemen have been offered and are now offered the opportunity to amend their pleadings if they want to make a case in accordance with their statement in court.”
At this point in the trial a recess was taken, to give the plaintiff time in which to draw an amendment to the pleadings grounding its action on the policy bearing date *481January 20, 1927. As soon as the court accepted and allowed the amendment, the defendant moved for a continuance. This was granted. Plaintiff then withdrew the amendment rather than suffer a continuance and the trial proceeded on the contract of insurance bearing date January 20, 1932. It was understood between the court and counsel that the provisions of the contract bearing date of January 20, 1927, had been entirely eliminated from the case. That this was thoroughly understood by the plaintiff is borne out by the following statements by his attorney copied in the records: “We stated, by withdrawing the amendment, as I understood, we were understood as having no rights under the 1927 policy. We want the record to show that we haven’t our rights under the 1927 policy.”
Defendants relied upon the ruling of the court that the plaintiff was basing his action entirely on the provisions of the new insurance policy, so when the proof clearly showed that the disability was not covered by the contract bearing date January 20, 1932, the defendant offered no evidence on the merits of the case and moved that all evidence he excluded. For some unknown reason the trial court reversed its rulings, overruled defendant’s motion and gave judgment against it.
Among other provisions in the contract, upon which the action is based, there is the following: “This policy and the application herefor, a copy of which is attached to this policy when issued, constituted the entire contract of insurance. The contract is not in force unless this policy is delivered and the first premium is actually paid during the good health of the insured. When so delivered and the first premium is paid, this policy shall be deemed effective for all purposes from its date.”
It is clearly shown by the evidence that the plaintiff was not in good health on tire date the contract was delivered and that his disability had occurred several months previous to the date of the contract.
The provision of the contract regarding disability is, in part, as follows: “If due proof shall be presented at the *482Home Office of the Company that the insured has, while both said Policy and this Additional Provision are in full force * * * become totally disabled as a result of bodily injury or disease occurring after the issuance of this Additional Provision and after the initial premium payment hereunder” then the company will pay $50 per month during the continuance of such total disability. Clearly the disability proven was not covered by this clause in the contract of insurance upon which this action is based.
Whether or not plaintiff was entitled to recover under the terms and conditions of the 1927 policy is a matter of speculation. This policy was expressly excluded from consideration by the ruling of the court and by the failure of the plaintiff to take advantage of his opportunity to amend—yet the plaintiff was allowed by the trial court and now by this court to recover on a contract, the provisions of which were and are unknown to the court. The result is that the defendant has suffered an adverse adjudication upon a contract not before the court and actually unknown to it. I fully concur with the statement of defendant’s counsel in their brief, wherein this is said: “A more astonishing situation, a more patent disregard of legal principles, and the rules of practice and procedure, has never before come under the observation of counsel or been called to their attention.”
The majority opinion states that the defendant company knew the terms and conditions of this policy, which had been cancelled when the plaintiff surrendered it. That may be true, but the plaintiff did not request the defendant to surrender or give them a copy of this contract until the day of the trial. Counsel stated, when called upon to produce it, that doubtless the company had it, but if so it was in the home office of the company and not in possession of counsel. There is not a scintilla of evidence even suggesting that the defendant concealed anything from plaintiff or from the court. Plaintiff could have obtained the cancelled policy by taking the proper steps.
. The majority opinion holds that the application for thé *483original policy of January 20,1927, was a part of the contract of insurance bearing date January 20, 1932. Suppose it does, what light does this application shed upon the liability of the defendant company? At the risk of being tedious I am copying this application.
“I, Walter Clyde Erwin, hereby make application to the PHILADELPHIA LIFE INSURANCE COMPANY for $5,000.00 insurance on the 5 yr. term W. P. & A. D. I. G. plan; Annual Premium, $59.30, payable annually. I was born on the 24 day of April, 1899. Age nearest birthday 30 years. Residence R. F. D. No. 1 Jeffress, Va. Place of business, Jeffress. Premium notices to be sent to Insured. My occupation is Poultryman & farmer. Beneficiary Mrs. Sue Moore Erwin, wife, Jeffress, Va., R. F. D. 1. Dividends to be paid to insured at the end of......years.
I have this 23 day of Dec. given to C. R. Wagstaff, agent, the sum of $ Note 59.30, to be used in payment of the first annual premium on policy when issued by the Company in accordance with this application, and I hereby agree to be examined forthwith by an authorized medical examiner of the Company, and to accept the policy when issued. I hereby agree that all representations and agreements made by or with the company or the agent taking this application are reduced to writing herein and made a part of this application and the policy issued hereunder. Dated at Jeffress, Va., R. F. D. 1, this 23 day of Dec., 1926.”
“W. C. ERWIN.”
Witness C. R. Wagstaff & Warriner, Agent.
If this application sheds any light upon the liability of the defendant in this action, I am unable to perceive it. It is nowhere alleged or proved that the provisions set forth in the second policy were the same as those contained in the original policy; hence it seems to me that this court is giving judgment upon a contract which is not before it, the terms and conditions of which are entirely unknown to it.
For the reasons stated, I think the judgment of the trial, court should be reversed.