after stating tire facts: This cause was before us at the February Term, 1905 (138 N. C., 379), at which time several of the questions presented by defendant’s exceptions were considered and decided. Mr. Justice Brown, writing for the unanimous court, there said: “In the absence of fraud, the delivery of an insurance policy is conclusive proof that the contract is completed and is an acknowledgment that the premium was properly paid during good health.” This proposition, with the further one, that in such case the policy takes effect from its date is sustained by the authorities cited in that opinion. As stated by Judge Brown, if there be conditions in the policy restricting the effect of the delivery, proof of their non-observance devolves on the defendant. The learned counsel for the defendant insists that the conditions contained in the policy must be complied with before it is effectual — that they are conditions precedent. Let this be *431conceded and the result follows that the delivery of the policy is an acknowledgment by the company that they have been met — that the premium has been paid. It is not that the condition has been waived; but'that, in the absence of evidence to the contrary, the delivery of the policy is an acknowledgment that they have been complied with. It cannot be that after the delivery of an instrument, reciting the payment of the consideration upon which the promise of defendant is based, the plaintiff must “go forward” and prove what is solemnly admitted. Such is the proper construction of the policy. The defendant concedes that a number of courts have decided the question in accordance with our view, but insists that the contrary is held by others and is the correct view. On the last trial defendant offered no evidence nor does it appear, in any way, that the premium had not been paid. We presume that this course was pursued in deference to our decision on the former appeal. We have examined the authorities cited and see no reason for changing the conclusion to which we then arrived. This disposes of the defendant’s exceptions in regard to His Honor’s refusal to submit the issues tendered. The questions sought to be presented were met and disposed of by the instruction to the jury upon the second issue, which is sustained by the decision upon the former appeal. In the view which we take of the ruling of His Honor upon the fourth issue, several of defendant’s exceptions become immaterial. We have examined the several prayers declined by His Honor and see no error in his rulings.
Without discussing the interesting question presented by defendant’s counsel in regard to the medical or surgical treatment received by plaintiff and its effect upon the length of time which his disability continued, we find no evidence upon which the jury could base any conclusion in regard thereto. To guess that if the plaintiff had consulted other physicians or received other treatment, he may have had *432earlier relief, cannot be permitted. This brings ns to a consideration of tbe ruling upon tbe fourth issue. An accident policy does not undertake to indemnify tbe insured for permanent injuries, otherwise than is expressly provided by its terms. Considered only with reference to such of tbe terms of this policy as are involved in this appeal tbe contract is that tbe company undertakes to pay tbe insured whose occupation is “a section foreman on track work” tbe sum of five dollars per week for a period not exceeding one hundred and four weeks, during which, by reason of injuries caused by accident, etc., he is “wholly, immediately and continuously disabled from transacting any and every kind of business pertaining to bis occupation.” Tbe standard, therefore, by which tbe amount of bis recovery is fixed is tbe number of weeks during which, by tbe causes named in the policy, be is so disabled from transacting, not his occupation, but every kind of business pertaining to such occupation. .His Honor gave tbe fourth prayer of defendant, which we think correctly instructed the jury in that respect. The only testimony which the jury had for its guidance was that of the plaintiff. He says that he went back to his work and occupation as section foreman on March 24, 1904, with same number of hands at the same salary which he had received before the accident and has continued in such occupation under the same conditions to the time of the trial. In view of this testimony defendant insists that His Honor was in error in submitting to the jury any theory upon which they could find that plaintiff was disabled in the manner and to the full time provided for by the policy; that he should, upon plaintiff’s evidence, have instructed the jury to answer the fourth issue — -twenty-one weeks. In his carefully prepared brief defendant’s counsel cites a number of cases which sustain his contention in this respect. In Bylow v. Casualty Co., 12 Vt., 325, it appeared that plaintiff was insured by a policy containing the identical language found in the one before us. *433His occupation was a lumper in a granite cutting yard, the duties of which occupation were “overseeing, carrying and boxing granite,, loading and unloading cars.” His thumb was injured; he continued thereafter in the employ of the granite firm in superintending the work that he had been doing before the accident. Taft, C. J., said: “It thus appears that he was not wholly and continuously disabled and prevented from performing any and every kind of duty pertaining to his occupation, for he continued in the employ of the same firm in connection with his duties, performing them in part and receiving ninety per cent of his full pay, working nine hours daily instead of ten, at the same rate per hour that had been paid him.” In this appeal plaintiff performed from and after March 24, 1902, the same service in the same occupation at the same salary.
In U. S. Mut. Accdt. Asso. v. Millard, 43 Ill. App., 148, the court said: “The undertaking of defendant was not to indemnify against pain or inconvenience, but. for the loss of time when wholly disabled from attending to his professional business.” In James v. Casualty Co., 88 South Western (Mo.), 125, Ellison, J., says: “We hold the contract to mean, not that the insured was rendered absolutely and literally unable to perform any part of his occupation, but that he was disabled from performing substantially the occupation stated in the policy.” This is in accordance with the standard laid down by His Honor. The definition of the terms used and construction of a policy very similar to that under consideration is given in Wall v. Continental Casualty Co., 86 South Western (Mo.), 490. The discussion and review of the authorities is exhaustive. Goode, J. says: “The purpose was to provide indemnity for the plaintiff if he should sustain loss of time in consequence of an accidental injury; that is, be prevented by such an injury from using his time so as to derive income from it. In other words, the agreement contemplated an indemnity to the plaintiff by an acci*434dental injury by which, his ability to earn money should be suspended.” Knapp v. Mut. Accidental Ins. Co., 53 Hun. (6 N. Y. Supp., 57), 84; Ford v. U. S., etc., Co., 148 Mass., 153; Lobdill v. Mut. Aid Asso., 69 Minn., 14; 1 Cyc., 269-270.
After instructing the jury as requested by defendant, His Honor further said: “If you find from the evidence that the plaintiff was prevented from performing the substantial part of his duty pertaining to his occupation according to the contentions of the plaintiff, then you will answer this issue ‘one hundred and four weeks.’ ” We find nothing in the evidence to sustain this instruction. It is true that the plaintiff testified that a part of his duty in his occupation was, at times, to do actual manual labor, putting in cross ties, driving spikes, tamping ties, etc. That he was not able to do this work since the injury sustained by him. Assuming this to be true, he says that he' is now working the same force of hands; following the same occupation and receiving the same salary as before the injury. In the light of .this testimony, we do not think that it can be said, or the inference reasonably drawn, that he was substantially “wholly, immediately and continuously disabled from transacting any and every kind of business pertaining to his occupation” for one hundred and four weeks. This is the plain language of the policy and measure of defendant’s liability. It is true that His Honor in this connection states plaintiff’s contention to be that the railroad company was rewarding a worthy employee who had the misfortune to be injured, etc. We find no suggestion of any such condition in the evidence upon which to base such a contention. In the absence of such explanation of the actual conditions existing since March 24, 1902, we must conclude that plaintiff earned his salary in his occupation. How far the generosity of the railroad company, if shown to exist, would affect the defendant’s liability, it is not necessary for us to say. We are not disposed to depart from the well set-*435tied and frequently recognized rule that the language of insurance policies, when'of doubtful meaning, is to be construed strictly against the insurer, and liberally in favor of the insured, but we may not do violence to clear and explicit language to find or to increase, liability by construction when it does not exist by a fair interpretation of the contract. It will be noted that the policy provides for indemnity for partial disability by which the company agrees to pay not exceeding eighty per cent of the amount payable for a total loss of time. The plaintiff elected to sue for total disability and the measure of his right must be determined by the language of his contract. In the light of his own testimony he cannot recover for more than twenty-one weeks, and His Honor should so have instructed the jury. He did so by giving the fourth prayer and the error consists in adding thereto the language excepted to. While this disposes of the appeal, an interesting, and in view of the large number of such policies in existence, an important question is presented by defendant’s request to His Honor to instruct the jury that only fifty-two weeks having elapsed between the injury and the date of the summons, plaintiff could not, in any point of view, in this action recover for more than that time. At the time of the trial the entire period had elapsed. It will be noted that the contract is to pay “five dollars per week.” We presume that after the proofs are in, the insured is entitled tq_demand the weekly indemnity at the end of each week, and upon failure to pay may sue therefor. However this may be, we do not think that a recovery may be had for any time subsequent to the date of the writ. In certain well defined cases, sounding in damages the plaintiff may have his damages assessed up to the time of the trial and in some, as for personal injuries, damages may be assessed for future suffering and incapacity. We find no authority for permitting a recovery upon an express contract for any other amount than *436that due at the date of the writ. Jarrett v. Self, 90 N. C., 478; Smith v. Lumber Co., 140 N. C., 375.
There must be a new trial upon the fourth issue. It is so ordered.'
Partial New Trial.