(dissenting).
The crux of this litigation is whether the first paragraph of the rider to the policy entitled the insured to disability benefits from the date he became totally and permanently disabled, which was before he became sixty years of age, although he gave the insurer no notice of his disability prior to attaining the age of sixty years. A writing is ambiguous when it is subject to different reasonable interpretations. The court below held that this rider was clear and unambiguous, and that it did not require proof of disability before reaching the age of sixty. The majority of this court holds that the rider is clear and unambiguous and does require proof before age sixty. My study of the langu'age of the rider, read alone and in conjunction with related provisions of the policy, convinces me that the rider is reasonably susceptible of both interpretations; hence, it is ambiguous.
Section 3 of the policy provides that the disability benefits therein provided become effective if (1) proof of disability is furnished before the insured becomes sixty years of age, and (2) no premium is in default. The second portion of the rider provides that the disability benefits therein provided attach if (1) proof of disability is furnished before the insured reaches the age of sixty, and (2) no premium is in default more than six months. The disability benefits payable under the first paragraph of the rider become effective if (1) no premium is in default, (2) the proof of disability furnished is such as to entitle the insured to benefits under Section 3 of the policy, and (3) due proof is made that the disability was continuous.
It must be noted that, though each of the other sections specifically require proof before age sixty, that express language is omitted from the first paragraph of the rider. Such a provision might easily have been inserted. It was surrounded in the policy by related clauses including such a provision. Is not the studied omission enlightening? Does, it not bring into play the principle inclusio u’nius est exclusio alterius? But it is said that the requirement that the proof of disability must be such as to entitle the insured to benefits under Section 3 reads into the rider all the conditions imposed by Section 3. If this were true there would be no reason for including in the rider the condition that all premiums be paid, for that was also a condition under Section 3 and the repetition would serve no useful purpose. Moreoyer, it is not required that the proof of disability be such, and be submitted within such time, as to entitle the insured to the disability benefits. I think the most reasonable construction of the language used is to conclude that it referred only to the substance and quantum of the proof evidencing the existence of total and permanent disability. Even if it be granted that the contrary is also a reasonable interpretation, we are met with and must apply the rule that the ambiguity must be resolved most favorable to the insured.
Finally, there is a profound difference in the rights conferred by the respective clauses that may explain the intentional imposition of different requirements. In both Section 3 and the second clause of the rider, wherein the condition of proof before age sixty was employed, the right’ to benefits did not mature until proof of disability had been furnished. No benefits accrued there.under, even though disability existed, unless and until the proof of disability was made, and then the benefits were payable prospec*703tively only. Under the first clause of the rider, however, disability benefits began to accrue the moment the insured became totally and permanently disabled. The giving of proof of disability was not a condition precedent to the accrual of the benefits, it was only a condition precedent to the enforcement of the rights accrued. This important distinction, and its force and effect, is ably discussed in Boyett v. United States, 5 Cir., 86 F.2d 66, to which reference is here made, and in Mutual Life Insurance Co., v. Drummond, 8 Cir., 111 F.2d 282, which involved policy provisions identical with those considered here.
The rider sets a trap to catch the unwary. Moreover, I have shown clearly that it is ambiguous, and judicial decision invites a construction most favorable to the insured. Boyett v. United States, 5 Cir., 86 F.2d 66; Minnesota Mutual Life Insurance Company v. Marshall, 8 Cir., 29 F.2d 977; Daniel v. Life Ins. Co. of Virginia, Tex.Civ.App., 102 S.W.2d 256, 260; Williams v. Union Central Life Insurance Co., 291 U.S. 170, 180, 54 S.Ct. 348, 78 L.Ed. 711, 92 A.L.R. 693.
For these several reasons I dissent.