I would base the reversal of judgment in this case flatly on the ground that the policy sued upon is a nonfatal accident policy, and that since the assured met with a fatal accident there is no question of the right of any election by the assured, or the passing of such right after his death to his beneficiary or legal representatives. The policy would have conferred substantial benefits upon the assured had he met with a nonfatal disabling accident; it would have conferred no benefits on anybody had the assured been instantly killed; and it conferred only the right of weekly indemnity upon the assured or the beneficiary in the event that the assured met with an accident that resulted in his death within ninety days or within a period of total disability even though it was longer than ninety days. If the assured had lived more than ninety days in a condition of partial disability, he would have been entitled to special benefits, for example, for the loss of an eye or a leg or an arm. Article 3 of the insurance policy provides: "If the Assured suffers total disability, and if, during the period of said disability, the Assured suffers death as the direct result of the bodily injury causing the said disability, or, if within ninety days from the date of the accident, irrespective of disability, the Assured suffers death as the direct result of a bodily injury, the company will pay the Beneficiary
THE PRINCIPAL SUM, and in addition THE WEEKLY INDEMNITY for that part of the period between the date of the accident and the date of death for which no weekly indemnity has been paid."
Paragraph "11," under the heading "Special Provisions" of the insurance policy, defines "principal sum" as "NONE dollars ($****)." The assured having died nine days after receiving his fatal injuries, all that his *Page 191 legal representative is entitled to is the weekly indemnity for nine days. The court below decided that since the fatal accident resulted in the loss of assured's eye a short time before his death, he would have been entitled to $15,000 under the terms of the policy if he had made a certain election of benefits provided for in the policy, but that since he did not do so, the right of election passed to his legal representative. Under this construction of the policy, if, for example, in the fatal accident the assured had suffered the loss of both legs and had died (say) nine days, or nine hours, or nine minutes later, he would have been entitled to $20,000, provided he had made the appropriate election during the short interval of survival, but that, having made no election, this right passed to his legal representative. Nothing of this kind was contemplated by this policy or is promised by it. Inasmuch as he died as a result of this accident, nothing except the weekly indemnity for the period between the date of the accident and the date of the death was payable under this policy.
The assured previously had a policy in the same company, which is set forth in the pleadings "for the better understanding" of the policy sued upon. This earlier policy was superseded on November 14, 1929, by the policy now sued on. It provided that in the event of the death of the assured, as a direct result of bodily injuries, the company would pay the beneficiary $5,000, (but in such an accident as the one which resulted in assured's death the sum paid would have been $10,000), and for such period between the date of the accident and the date of death for which no weekly indemnity has been paid, an additional sum of $25 a week. That policy also contained a provision that in the event the assured lost one eye he would receive $2,500, and if he lost both hands or both feet, $5,000. The policy sued upon provides that for the loss of one eye the assured would receive $15,000, and for the loss of both eyes or both hands or both feet, $30,000. It is also clearly provided *Page 192 in the policy sued upon that in the event of death resulting from bodily injuries, with or without total disability, the beneficiary would be paid nothing. The annual premium on the old policy was $75 and on the new policy was $78. For practically the very same annual premium, therefore, the assured received in his new policy a much better accident policy, but no insurance against death, whereas, the old policy provided for less substantial payments in the event of injuries, but a very substantial payment in the event of death.
Under the construction given the new policy by the courtbelow the assured would receive for practically the same annual premium as he had previously paid, a policy not only guaranteeing him much larger benefits for disabling injuries but also providing for the payment of benefits in the event the accident resulted in his death, if in such fatal accident anyone of the many specific injuries enumerated in the policy wasinflicted, such as the loss of a leg, or an arm, or an eye, or the loss of a thumb and forefinger of either hand. For example, in the event of the loss of the assured's thumb and forefinger of either hand, the policy provides that $10,000 would be payable. It certainly was not contemplated that if, as anincident to the fatal accident, the victim's thumb and forefinger were dismembered, that the beneficiary would receive $10,000. The purport of the contract was that if the victimsurvived such an accident more than ninety days and as a result of the accident lost the thumb and forefinger of either hand, he would be paid $10,000 for such disability. Having died nine days after the accident and as a result of it, the assured's incidental loss of an eye in the same accident, is merged in his loss of life. To award $15,000 for this incidental loss of an eye in a fatal accident is to make this policy, in beneficial effect a fatal accident policy, and this is something which it clearly is not. *Page 193