In petition for rehearing, which was granted, it is contended:
"1. Said judgment is based upon the decisive ground, `the failure to furnish due proof of his disability to the company's home office during the lifetime of the insured *Page 884 was practically impossible, and, as we see it, legally excusable.'"
"This is a point which was not made an issue by the record. References to the following portions of the record — which are the only places this point could have arisen — will show that it was never tendered as an issue that the impossibility of timely and properly making due proof was the reason it was not made, and that neither the Civil Court of Record nor the Appellate Court ever considered it;
"The declaration did not so allege (R. p. 4);
"The demurrer to the Declaration did not raise the point. (R. p. 15);
"The Pleas did not present it (R. pp. 21, 26, 32);
"It was not mentioned in the company's Motion for a Directed verdict (R. p. 143);
"Nor did the company's Motion for New Trial suggest it (R. p. 145);
"Nor its Motion in Arrest of Judgment (R. p. 65);
"Nor its assignment of Errors on Bill of Exceptions (R. p. 146);
"Nor its Complete Assignment of Errors (R. p. 154);
"It was not referred to by the Circuit Judge (Opn. R. p. 163);
"It was not stated as a `question involved' in the Petitioner's Brief — nor in the company's Reply Brief;
"In all those places where alone the points in dispute are disclosed, the record shows that the only controversies between the parties were (1) did the oral transactions of the insured's representatives with Bacon constitute due proof of disability? and (2) in view of those transactions, did the company waive the policy requirements of due proof? The opinion recognizes this, in stating: `The main controversy in the Court below seems to have been over *Page 885 the question as to whether or not notice to Milton Bacon, and his knowledge of Mr. Hallowes' complete disability * * *, was notice to the company, and in and of itself constituted sufficient proof of disability during the lifetime of the insured.'"
After reargument, we find that counsel for respondent has misconstrued the intent and meaning of our opinion in the phase thereof referred to.
In the original opinion we said:
"However, the main purpose of both of these policies was to insure the life of Mr. Hallowes and also to insure him against permanent and total disability during his life. On the first page of each policy it is stated that the company agrees to pay the insured a certain amount if the insured becomes wholly and permanently disabled before the age of 60, subject to the terms and conditions contained in Section 1. In one of the policies Section 1 provided that disability benefits shall be effective upon receipt of due proof before default in the payment of premiums, and in the other it is provided that `Whenever the company receives due proof before default in the payment of premiums,' etc.
"Undoubtedly, the terms of the contract contemplated that such `due proof' should be furnished by the insured to the company during his lifetime.
"The real question upon which this case turns is whether Mr. Hallowes, the insured, was legally excusable for not furnishing these `due proofs' of permanent disability before his death. They were furnished by his executors with reasonable promptness after his death. These provisions of the policies with reference to the furnishing of proofs of permanent disability were undoubtedly intended to prevent the company from being imposed upon. But in this case the evidence overwhelmingly shows that Mr. Hallowes was desperately ill from April 5, 1933, until his death on August *Page 886 21st following. He was not physically or mentally in any condition to make these proofs. Nor was it shown that his wife (who was a beneficiary as to the life insurance only) knew anything about these policies or their provisions with reference to the furnishing of proofs, and his son acted promptly as soon as he became convinced, a week before the end came, that his father's disability was presumably permanent. But, before Mr. Bacon could secure the affidavits of the physicians, and furnish the `due proofs' to the Company, Mr. Hallowes died."
By the statement, "Undoubtedly, the terms of the contract contemplated that such `due proof' should be furnished by the insured to the company during his lifetime," we meant that it was contemplated that `due proof' be made to the company by the insured during his lifetime but we followed that by holding that "due proof" could be made by insured's legal representatives after his death, under some conditions, and that such conditions obtained in this case.
The question decided was squarely presented in the lower court and on the record here.
The declaration alleged:
"The said William A. Hollowes, Jr., so assured became on to-wit the 5th day of April, 1933, wholly and permanently disabled before the age of 60, and so continued to be wholly and permanently disabled for a period of to-wit 139 days until the time of his death on to-wit August 21st, 1933, under such circumstances as to come within the promise and undertaking of said policy and to render liable and oblige the said William A. Hallowes, Jr., for the amount of $571.23; that after the death of said William A. Hallowes, Jr., Plaintiff Sarah R. Hallowes, was duly appointed and qualified and is now acting as executrix of the estate of said William A. Hallowes, Jr., and said William A. *Page 887 Hallowes III was duly appointed and qualified and is now acting as executor of the estate of said William A. Hallowes, Jr.; that all conditions have been performed and fulfilled and all things existed and happened and all periods of time elapsed to entitle the plaintiffs to the performance by the defendant of said contract, and to entitle the plaintiffs to the said sum of $571.23, and nothing has occurred to prevent the plaintiffs from maintaining this action; yet the defendant has not paid or made good to said William A. Hallowes, Jr., or to plaintiffs the said amount of loss or any part thereof, but refuses so to do."
Defendant's Ninth Plea was:
"That the Defendant has not received due proof of the insured's alleged disability."
So, the sum-total of our holding in this regard is that, under the showing made by the record the proof of disability made by the legal representatives, after the death of the insured, was sufficient to meet the requirement of "due proof" and that under the pleadings and proof the executors were entitled to recover for the full period of disability.
So that the opinion and judgment filed and entered herein on July 14th, 1938, is in all respects adhered to.
So ordered.
ELLIS, C.J., and WHITFIELD, BROWN, BUFORD and CHAPMAN, J.J., concur.
REHEARING DENIED