Bradley v. Prudential Ins. Co. of America, 7351.

• Decision Date: 14 May 1934
• Docket Number: No. 7351.,7351.
• Citation: 70 F.2d 988
• Parties: BRADLEY v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: U.S. Court of Appeals — Ninth Circuit

70 F.2d 988 (1934)

BRADLEY v. PRUDENTIAL INS. CO. OF AMERICA.

No. 7351.

Circuit Court of Appeals, Ninth Circuit.

May 14, 1934.

Marvin B. Sherwin and Clifton Hildebrand, both of Oakland, Cal., for appellant.

F. Eldred Boland and Knight, Boland & Riordan, all of San Francisco, Cal., for appellee.

Before WILBUR and GARRECHT, Circuit Judges, and NORCROSS, District Judge.

WILBUR, Circuit Judge.

This appeal is from a judgment on a directed verdict for the appellee insurance company.

On June 1, 1928, appellee executed and delivered to Pullman, Inc., a policy of group insurance whereby appellee insured the lives of the employees of the Pullman Company who applied therefor for a period of one year on payment of a premium based upon the total number of employees insured thereunder and at a rate variable with the age of each of such employees respectively. This policy was renewed from year to year and was in full force and effect on the 28th day of May 1932. The "master policy" was issued to the Pullman Company as employer and certificates of insurance were issued to those employees desiring insurance under the policy. The premium for the policy was paid to the insurer by the employer which deducted from the pay of each insured employee a portion of the premium on the insurance for such employee.

On November 21, 1930, Ralph W. Bradley, then an employee of the Pullman Company at Oakland, Cal., became insured under this policy and received two certificates of insurance in which his mother, appellant herein, was beneficiary. One of these certificates was for the sum of $1,500 payable in the event of the death of the insured during the term of the policy and certificate, and the other was for the sum of $1,500 payable in the event that such death of the insured resulted from external violence and accidental means. Each of these certificates was increased on January 1, 1932, to the sum of $1,650.

The policy of group insurance issued to the employer contained a provision, among others, as follows:

"Irrespective of any other mode of termination, the insurance upon the life of any person insured hereunder shall cease and determine upon termination of the employment of such person with the employer, except that at the option of the employer employees temporarily laid off, upon leave of absence, or temporarily disabled, shall during such periods be considered as being in the employ of the employer. The employer shall enter upon the record of employees the date when the insurance upon any employee terminated. Such entry by the employer of any termination of insurance shall be satisfactory evidence that such insurance has terminated, and shall release the company the defendant from all claims on account of the insurance so terminated, except as to the right of conversion as herein provided."

For some time prior to March 27, 1932, Ralph Bradley, due to lack of business of his employer, had worked only at intervals and reported for work when notified by his employer. His last work was performed on March 27, 1932, during the course of which he asked to be excused on account of illness. He reported for work again on March 29, 1932, at which time the evidence shows he was discharged for malingering. He did not, however, receive his pay at that time but was paid on April 10, 1932, the regular pay day. This delay is explained by the fact that the time cards of the employees were sent in to the home office of the company in Chicago, Ill., where they were audited and the pay checks were issued. The...