The opinion
On Motion for Rehearing.
Appellant in its motion for a rehearing insists that our construction of the policy renders clause B of part VIII, upon which appellant relies, wholly superfluous, and upon a casual consideration it might so appear, but we do not think it necessarily so in all cases. The general rule is that, in the absence of fraud, accident, or mistake,- parties are sued in accordance with the terms of the *317 contract construed as a whole, and with effect given to all of its parts when that can be done. We find no fault in this general rule, but in all cases the purpose and true intent of the parties to the contract is to be diligently sought, and in the ascertainment of such purpose the contract as a whole, the situation of the parties^ and the circumstances under which the contract was executed, should be considered.
So considering the contract of insurance in question, it is clearly one of indemnity. Its major purpose was 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 hind 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 instrumentalities 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. such eases the indemnifying company can well be said to have the right to insist upon the character and method of proof it had taken the precaution to prescribe.
We conclude that the motion for rehearing should be overruled.