Missouri State Life Ins. Co. v. Le Fevre ( 1928 )

I regret that I cannot agree with my Associates in the disposition of this case. I agree with that portion of the opinion which holds that the pleadings do not support the judgment. In my opinion, the judgment should be reversed and rendered for appellant. Under the plain provisions of the contract as made between the parties, release from the payment of premiums "will apply only to the premiums falling due after receipt of proof of disability." I do not think the contract as made between the parties can be construed to mean that the insured is relieved of payment of premiums unless and until he has strictly complied with the conditions precedent. The court should not make a contract for the parties. I do not think the policy in question falls within the class of policies where the company is to pay sick benefits or pay benefits on account of disability. There is nothing in the policy which in any way obligates the company to pay the insured anything in case of sickness. The insurance company had no money in its possession belonging to the insured which it could have applied to the payment of the premiums. I think the weight of authority is that before a party is relieved of the payment of premiums under a policy similar to this, he must furnish the required proof of total disability before the premium has become due. Burns v. American National Ins. Co. (Tex.Com.App.) 280 S.W. 762; Wick v. Western Union Life Ins. Co., 104 Wash. 129, 175 P. 953; Brotherhood of Railway Trainmen v. Dee.101 Tex. 597, 111 S.W. 396; Illinois Bankers' Life Ass'n v. Byassee,169 Ark. 230, 275 S.W. 519, 41 A.L.R. 379.

It being undisputed that no notice of disability was given before the policy in this case lapsed, in my judgment the cause ought to be reversed and rendered.