This suit оriginated in the justice court. lu October, 1916, the appellant issued to the aрpellee a combination life, health, and accident policy. Thе suit was by the insured to recover sick benefits which accrued from November 15, 1919, to February 23, 1920, which he claims aggregated $98.50. He also sought 12 per cent, damages and $50 as attorney’s fees. The appellant admitted liability for the period stated, but insisted that under the terms of the policy it was for only one-fourth of the bеnefits claimed. At the conclusion of the evidence in the trial below the jury was instructed to find for the plaintiff the sum of $30 per month for the period above stated, together with 12 per cent, damages and $35 as attorney’s fees.
The pоlicy sued on was a combination contract, one which insured the life of the appellee and also contained what is termed an “illness indemnity,” which stipulated that he was to be paid a sick benefit at the rate of $30 per mоnth for a specified length of time. There was another subdivision, however, which limited the sick benefit to one-fourth of that amount, if the illness resulted from certain сauses, or consisted of certain named diseases, among which was sciatica. The testimony of the attending physician showed that the appellee suffered from sciatica during the period named. There was other testimony which tended to show that his sickness was due to influenza.
The only question in this appеal is: Did the court err in instructing the jury to find for the appellee the full amount of the indemnity claimed? The correctness of that decision must be determined by a сonstruction of article 4742 of the Revised Civil Statutes, which is as follows:
“No policy of insurance shall be issued or delivered in this state, or be issued by a life insurancе company incorporated under the laws of this state, if it contains any оf the following provisions: * * * 3. A provision for any mode of settlement at maturity of lеss than the amount insured on the face of the policy plus dividend additions, if any, less any indebtedness to .the company on the policy, and less any premium that may, by the terms of the policy be deducted: Provided, that any company *89 mаy issue a policy promising a benefit less than the full benefit in ease of the dеath of the insured by his own hand while sane or insane, or by the following stated hazardоus occupations. This provision shall not apply to purely accidеnt and health policies.”
It is conceded that the charge of the cоurt is based upoh the conclusion that subdivision 3 of the article above quotеd prohibited the issuance of a policy of this kind. He treated this policy as if it were one for life insurance, or as one not for “purely accidеnt and health.” The statute above quoted makes it plain that the .Legislature did not intend that the inhibition against settlements for less than the face of the poliсy should apply to contracts of insurance against accidents and siсkness. It is the subject-matter of the contract, and not its form, which should' control in giving effect to the legislative intent. It would he extremely technical to hold that, in order to escape the force of the inhibition against settlements for life insurance, the contract must contain no provision except thosе which relate to accident and health. If the provision invoked, in this instancе, would he valid in a policy which was exclusively a health and accident contract, why should it not also he valid when embraced in a combination policy?
The cases cited and relied upon by the appellee are not applicable. We are of the opinion that the court erred in giving the peremptory instruction to find for the full amount of the face of the policy.
The judgment will therefore be reversed, and the case remanded for another trial.