
    Mary A. Perry vs. Provident Life Insurance and Investment Company.
    Under a policy of insurance in the sum of $2000 against loss of life from accidental injuries occasioning death within ninety days from the accident, and in the sum cf $10 a week for a period not exceeding twenty-six weeks against personal inj ury u for any single accident by which the assured shall sustain any personal injury which shall not be fatal,” the weekly sum is due for injury by an accident which does not occasion death within ninety days, although it is finally fatal.
    Contract by the executrix of the will of Calvin Perry, on a policy of insurance whereby the defendants insured the plaintiff’s testator “ against loss of life or personal injury; against loss of life in the sum of $2000, to be paid to Mary A. Perry and her legal representatives within ninety days after sufficient proof that the assured, at any time after the date hereof, and before the expiration of this policy, shall have sustained personal injury caused by any accident within the meaning of this policy and the conditions hereto annexed, and such injuries shall occasion death within ninety days from the happening thereof, sufficient proof being furnished this company; against personal injury, in the sum of $10 per week, for a period not exceeding altogether rwenty-six weeks for any single accident within the meaning of this policy, and the conditions hereto annexed, by which the assured shall sustain any personal injury which shall not be fatal but which shall absolutely and totally disable him from the prosecution of his usual employment, satisfactory proof being furnished this company.” The action was brought to recover $130, being $10 a week for each of thirteen weeks during which the testator was absolutely and totally disabled from the prosecution of his usual employment.
    The plaintiff’s testator bad his arm crushed by an accident on December 11, 1866, and continued to be absolutely and totally disabled from the prosecution of his usual employment till March 12,1867, on which day he died from the results of the accident. The defendants admitted that the plaintiff was entitled to recover unless the fact that the accident was fatal constituted a defence; and the case was submitted to the judgment of the superior court, and, on appeal, of this court, upon agreed facts, of which the material part was as above stated. The plaintiff had previously failed in an action against the defendants to recover $2000 under the policy. See 99 Mass. 162.
    
      L. A. Jones, for the plaintiff.
    
      J. D. Ball, for the defendants.
   Chapman, C. J.

The policy insures the plaintiff’s testator against two classes of injuries, namely, those which occasion loss of life within ninety days, in the sum of $2000 ; and those which shall not be fatal, in thé sum of $10 per week for a period not exceeding altogether twenty-six weeks. The two provisions are to be construed together; and the evident intent is, that, if an injury happens within the meaning of the policy, it is insured against as coming within one class or the other. If it were otherwise construed, an injury which should not prove fatal within ninety days would furnish no ground of action till it should be made to appear that it would never prove fatal. This would render the insurance nugatory in such cases.

Judgment for the plaintiff.  