Ardery v. Union Underwear Co.

• Decision Date: 26 February 1943
• Citation: 169 S.W.2d 45,293 Ky. 439
• Parties: ARDERY et al. v. UNION UNDERWEAR CO., Inc., et al.
• Court: Kentucky Court of Appeals

169 S.W.2d 45

293 Ky. 439

ARDERY et al. v. UNION UNDERWEAR CO., Inc., et al.

Court of Appeals of Kentucky

February 26, 1943

Appeal from Circuit Court, Franklin County; William B. Ardery Judge.

Action by Philip P. Ardery, administrator of the estate of Glenda Lewis, and others, against the Union Underwear Company, Inc. and the Metropolitan Life Insurance Company, Inc., to recover death benefit provided for by group insurance policy. From a judgment dismissing the petition, the plaintiffs appeal.

Judgment affirmed.

Polk South, Jr., of Frankfort, for appellants.

Samuel M. Rosenstein, of Frankfort, for appellee Union Underwear Co.

Bruce &amp Bullitt and Eugene Cochran, all of Louisville, for appellee Metropolitan Life Ins. Co.

TILFORD Justice.

Glenda Lewis was an employee of the Union Underwear Company, and, as such, a beneficiary of a group insurance policy issued to that company by the Metropolitan Life Insurance Company. Its relevant provisions follow:

"(a) The insurance on any Employee insured hereunder shall cease automatically thirty-one (31) days after the date of the termination of employment of such Employee, except as provided in the second paragraph below.

"Cessation of active work by an Employee shall be deemed to constitute the termination of his employment, except as provided in the next paragraph.

"In the case of the absence of an Employee from active work on account of sickness or injury, or on account of retirement on pension, or not for longer than two months on account of leave of absence or temporary lay-off, the employment of such Employee may, for the purpose of this Policy, be deemed to continue until terminated by the Employer. The insurance hereunder on such Employee shall cease thirty-one (31) days after the date of such termination by the Employer, as evidenced to the Company by the Employer, as whether by notification or by cessation of premium payment on account of the insurance hereunder of such Employee.

"(b) The insurance on any Employee insured hereunder, who shall have notified the Employer that his insurance under this policy is to be discontinued, shall cease thirty-one (31) days after the date such notice of discontinuance was received. Failure of any Employee to make contributions when due, as required by the Employer, to the cost of his insurance hereunder shall be deemed notice to the Employer that his insurance hereunder is to be discontinued."

On March 12, 1940, Glenda Lewis "quit" her employment following a reprimand for the unsatisfactory quantity and quality of her work, and on April 18th, committed suicide. This action was instituted by her administrator to recover the $1,000 death benefit provided by the policy. The Circuit Judge tried both the law and the facts, and dismissed the petition. This appeal is from that judgment.

The Court found that Glenda Lewis's employment terminated on March 12, 1940, and the proof amply sustains that finding. In any event, we must accord it the weight to which the verdict of a properly instructed jury is entitled. Coleman's Ex'r v. Meade, 13 Bush 358; Bell v. Wood, 87 Ky. 56, 7 S.W. 550; Kahn v. Rogers & Pottinger, etc., Co., Ky., 44 S.W. 431; Income Life Insurance Co. v. Anderson, 250 Ky. 367, 63 S.W.2d 1.

It is argued by appellants, however, that the deduction of 29¢ from Glenda Lewis's pay check of March 8, 1940, and...