Rosenberry v. Fidelity And Casualty Company of New York

• Decision Date: 25 March 1896
• Docket Number: 1,943
• Citation: 43 N.E. 317,14 Ind.App. 625
• Parties: ROSENBERRY, ADMX., v. FIDELITY AND CASUALTY COMPANY OF NEW YORK
• Court: Indiana Appellate Court

43 N.E. 317

14 Ind.App. 625

ROSENBERRY, ADMX., v. FIDELITY AND CASUALTY COMPANY OF NEW YORK

No. 1,943

Court of Appeals of Indiana

March 25, 1896

From the DeKalb Circuit Court.

Judgment affirmed.

A. B Young, D. M. Link and F. S. Roby, for appellant.

Morris Bell, Barrett & Morris, for appellee.

OPINION

REINHARD, J.

The appellant, as the administratrix of the estate of Jesse Rosenberry, deceased, brought this action against the appellee on a policy of accident insurance. The complaint alleges that the appellee by the terms of said policy undertook and agreed to pay said Jesse Rosenberry, or, in the event of his death, to his legal representatives, the sum of $ 5 weekly indemnity against bodily injury sustained by the said assured through external, violent and accidental means for a length of time not exceeding fifty-two consecutive weeks; that on the 6th day of June, 1893, the said Jesse Rosenberry, while in the exercise of his duty, and acting in the capacity named in said policy, was struck violently, run over and injured by a train of cars, from which injury he died within twenty-four hours thereafter.

The appellee filed a demurrer to the complaint, which the court sustained, and this ruling constitutes the only error complained of. The printed policy, a copy of which is filed with the complaint, provides for two kinds of insurance, viz:

1. A "principal sum," in the event of the death of the assured from accidental injuries.

2. Weekly indemnity, in case of total disability, arising from such injuries, in the sum of $ 5 per week, for a period not exceeding fifty-two consecutive weeks.

In the policy sued upon, that portion of the contract providing for the payment of a "principal sum," in the event of accidental death, was left in blank and unexecuted, and it is admitted that no insurance is due from appellee on account thereof. What the appellant does seek to recover in the present action is the weekly indemnity contracted for in the second specification of insurance above enumerated, her counsel contending that inasmuch as Jesse Rosenberry died from accidental injuries, the estate of said Rosenberry is entitled to recover indemnity for the loss of his services for a period not exceeding fifty-two weeks, amounting to $ 260, the same as the decedent would have been entitled to recover had he lived and continued to be totally disabled from said injuries for that period.

The provisions of the policy upon which this claim is based are as follows:

"Does hereby insure (name) Jesse Rosenberry (the person described in said application), freight brakeman by occupation, for a period or periods specified below, beginning at noon of the day this policy is dated, in the amount of $ , principal sum, and $ 5 weekly indemnity, against bodily injuries, sustained through external, violent and accidental means, as follows: If death shall result within ninety days from such injuries, independently of all other causes, the company will pay the principal sum of this policy to his if surviving, or in the event of prior death, to the legal representatives of the assured * * * which payment shall terminate the policy."

It is averred in the complaint that the appellant's decedent died from his injuries within twenty-four hours after receiving the same.

The sole question here presented is this: Does the policy declared upon entitle the insured or his representatives to recover anything by reason of his death, or on account of any "indemnity" accruing after his death?

We think it clear that this question must be decided in the negative. The only kind of insurance provided for in the contract is indemnity for loss of time and services by the insured on account of accidental injuries.

In one sense all insurance is for indemnity. In case of death the proceeds of the policy are used to indemnify the beneficiary or if there be none, the personal representatives, or the estate of the decedent. Such is the insurance provided for under the style of the "principal sum" in this contract, in the event the same had been executed. But the indemnity contemplated in the executed portion of the contract is for loss of services during the life time of the insured...