Equitable Life Assur. Soc. of United States v. Murdock , 1949 Tex. App. LEXIS 1653 ( 1949 )

McGILL, Justice

(concurring)..

In my opinion the policy provision as to proof of loss was not complied with. All the written proof which appellee furnished appellant, other than the letter of May 29, 1943, written by his attorneys,-was for the purpose of showing total disability under policy No. 3380. Under such proof he did not claim permanent disability, he furnished no proof showing permanent (disability prior to the filing of this suit on June 30, 1943. All the written proof he furnished thereafter during the year from the date he claimed his total and permanent disability commenced showed total disability, but utterly failed to show its duration. It was unnecessary for him to do so in order to recover under policy No. 3380. The letter of May 29, 1943, written by his attorneys, amounts to no more than a claim of loss. It is the mere assertion of a claim under the policy, and is no proof of the validity of such claim.

I concur in the affirmance of the judgment for the reason that under the evidence the defendant waived proof of loss. The proof furnished under Policy No. 3380 may afford a reason for the waiver of proof on the policy sued on and appellant’s letter of June 14, 1943, in which it advises appellees attorneys that “while waiting this requirement we are contacting Morton Salt Company for full details in the matter” evidences sucji waiver and the trial court found in the judgment that there was such waiver.

I am authorized to state that Chief Justice Price concurs in these views.