joined by Justice Walker, dissenting.
In Federal Surety Co. v. Waite, Ft. Worth Civ. App., 297 S.W. 312, wr. dis., the insuring clause of the policy provided that:
“In the event that the insured while this policy is in force shall suffer from any bodily illness, or disease, which is con*170tracted and begins during said time, the company will pay for loss of time necessarily resulting therefrom as follows:
“A. ■ Said monthly illness indemnity for the period of time, not exceeding twenty-four months, during which the insured shall be; totally and continuously disabled by such illness, or disease, from performing each and every duty pertaining to his occupation, and shall also by reason of such illness be strictly and continuously confined within the house and therein be under the regular care of a legally qualified physician.”
If this clause be interpreted literally, that is, like it reads, a person asserting a claim thereunder would have to prove as conditions precedent to a recovery (1) that he had been totally and continuously disabled from performing each and every duty pertaining to'his occupation; (2) that he had been strictly and continuously confined within the house, and (3) that he had been tinder the care of a legally qualified physician.
In Waite, however, the Court rejected the literal wording of the clause upon the thesis that the policy was essentially one of indemnity for loss of time occasioned by disability resulting from sickness or accident.
The-Waite case discussed the “confined within the house” phrase, and was followed in Provident Insurance Company v. Shull, Amarillo Civ. App., 62 S.W. 2d 1017, 1018, no writ history, from which I quote:
“There is no testimony and no finding that the insured was treated by a practicing physician during the sickness involved in this suit'.'1'"
“Authorities from some states are cited by plaintiff in error which sustain its contention that the defendant in error was not entitled to recover, not having shown that the insured was under a physician’s care during the period of indemnity. However, the'decisions from other jurisdictions hold, and we think they are based on the better reason, that such a stipulation or provision in the policy is only evidentiary in effect, and this is apparently the rule adopted in this state. The provision of the policy pertaining to insurance against loss of time by sickness was clearly one of indemnity.
“As s,aid by. Chief Justice Conner, in Federal Surety Co. v. Waite, (Texas Civ. App.) 297 S.W. 312, 317: ‘Its major purpose *171was to indemnify appellee for loss of time, occasioned by a total incapacity to labor arising from sickness. The insurance company had the clear right to prescribe the kind and character of evidence which would with the greatest certainty establish the fact of loss of time so occasioned when claimed. This it did in the present case by in effect requiring proof of a sickness necessitating confinement in the home and attendance therein of a physician. These provisions are termed “evidentiary” in some of the decisions and have no other reason fairly assignable for their presence in the contract. Where the facts of total incapacity and loss of time are otherwise established without dispute, or contest, as in the case here, reversible error should not be made to rest alone on the mere failure to establish the vital fact by the evidentiary instrumntalities prescribed in the contract. It would be doubtless otherwise in cases where the loss of time and incapacity to labor is questioned or left in doubt.’ ”
In the present case, the provision relating to being under a physician’s care is found in the portion of the policy designated as, “Exclusions, Limitations and Reductions.” The effect of Waite, particularly as interpreted by Shull was to effectively eliminate a condition precedent from the insuring clause of the policy. The place in the policy where the “physician’s care” clause is located does not seem particularly important to me. A distinction based upon a difference in policy provision would be highly tenuous. It is just as defensible to construe some words out of an exclusion clause as it is to construe them out of an insuring clause.
This does not mean that I find no rational basis for Waite and Shull. These are matters of public policy to be considered. Health and accident policies are, or at least ought to be, good faith agreements to provide indemnity for loss of time due to sickness and accident and should be construed as such. An insurance company is entitled to protect itself against false claims of disability and against malingering by insisting that the insured be under the care of a regularly licensed physician. But where the purpose for which the clause is sought to be used is not protection but simply and solely to defeat liability, a different question is raised. By stipulation, the company admitted both disability and the duration thereof. There is no contention that the duration of Selby’s disability was in any way affected by the care or lack of care he received. The situation is analogous to that disclosed in American Casualty Co. v. Horton, Dallas Court of Civ. App., 152 S.W. 2d 395, 398, wr. dis., wherein it was said that:
*172“The undisputed facts clearly showing that, plaintiff sustained total liability, [sic] it was none the less so, whether he was confined in a house, tent, or under the blue canopy, or whether visited once a week, or at all, by a licensed physician; total disability was the condition for which the defendant obligated itself to pay indemnity.”
I do not regard cases which proscribe unreasonable contractual provisions relating to evidence as being in point, although in some cases the principle underlying such decisions has been confused with the evidentiary as opposed to the condition precedent or exclusion concept of contractual provision which we have here. As to unreasonable contractual provisions relating to evidence, see, Sovereign Camp, Woodmen of the World, v. Boden, 117 Texas 229, 1 S.W. 2d 256, 61 A.L.R. 682; Sovereign Camp, Woodmen of the World, v. Piper, Texas Civ. App., 222 S.W. 649 no writ history. We do have however, a fairly well defined line established by decisions from a number of Courts of Civil Appeals which support the statement of the lower appellate court that, “Texas courts have long held this to be a matter of public policy, and will not treat such provisions [relating to a physician’s care] as conditions precedent to recovery ;”' or as valid exclusionary clauses, I might add. Southern Surety Co. v. Diercks (1923), Texarkana Civ. App., 250 S.W. 755, wr. ref., Inter-Ocean Casualty Co. v. Brown, Dallas Civ. App, 31 S.W. 2d 333, wr .dis., and American National Insurance Co. v. Briggs, Beaumont Civ. App., 70 S.W. 2d 491, wr. dis., and authorities therein cited.
If this were an original proposition I would admit to some reluctance in disregarding words and phrases contained in a written instrument even on the high ground of public policy, but, on the other hand, I am not one to turn over the cobblestones and re-examine the bases of a travelled path that leads to a just result. I would affirm the judgments of the courts below.
Opinion delivered July 20,1960.
Rehearing overruled October 5,1960.