Conger v. Travelers Ins. Co., 363
| Decision Date | 04 February 1966 |
| Docket Number | No. 363,363 |
| Citation | 146 S.E.2d 462,266 N.C. 496 |
| Court | North Carolina Supreme Court |
| Parties | Mittle S. CONGER v. The TRAVELERS INSURANCE COMPANY and Colonial Stores, Incorporated. |
Roberts & Wooten and Willis A. Talton, Greenville, for plaintiff appellee.
Taylor, Allen & Warren and John H. Kerr, III, Goldsboro, for Colonial Stores, Inc., defendant appellant.
The judgment does not disclose the ground on which the court adjudged that plaintiff 'have and recover nothing' of Insurance Company. Plaintiff did not appeal. Hence, the judgment is a final adjudication as between plaintiff and Insurance Company. Even so, whether plaintiff was entitled to recover from Insurance Company and, if not, the ground of Insurance Company's nonliability, has significance in determining plaintiff's right to recover from Stores. Plaintiff's alternative cause of action against Stores presupposes the nonliability of Insurance Company.
Plaintiff, in her alternative cause of action against Stores, alleges in substance, except when quoted, the following: Under Conger's employment contract with Stores, part of the insurance premium was to be paid by Conger and part by Stores. Stores deducted $1.90 per week, Conger's part, from Conger's salary checks 'up to and including the final week of said employment, the period ending the 24th day of April 1961.' Conger died May 22, 1961, 'within 31 days after the period ended for which' Conger's portion of the premiums had been deducted from Conger's salary. If the Insurance Company is not liable to plaintiff, 'because of the failure of * * * Stores * * * to remit the premiums due and deducted from * * * Conger's salary, or because of any other breach of contract by * * * Stores * * *, or for any other reason, then by reason of the wrongful and unlawful breach by * * * Stores * * * of the said contract of employment and its position of trust, the plaintiff has been damaged in the amount of $8,000.00.'
The policy provides the insurance of an employee under the group policy shall terminate when his employment with the employer shall terminate. It provides the employee, upon application made within thirty-one days after the termination of his employment, may exercise the conversion privilege quoted in our preliminary statement and that the insurance under the group policy continues in force during said 31-day period. In this connection, see GS 58-211, captioned 'Group life insurance standard provisions.'
This Court has held the word 'employment' as used in the phrase 'termination of his employment' in a group policy of insurance refers to the status of the employee rather than to a contractual relationship existing between the employer and the employee; and that the word 'termination' in said phrase means the end of such status, that is, a complete severance of the relationship of employer and employee. Lineberger v. Security Life & Trust Co., 245 N.C. 166, 170, 95 S.E.2d 501, 68 A.L.R.2d 1, and cases cited; Pearson v. Equitable Life Assurance Society, 212 N.C. 731, 194 S.E. 661; 44 C.J.S. Insurance § 329, p. 1265; 1 Appleman, Insurance Law and Practice § 122, pp. 171-2; Annotation, 68 A.L.R.2d 8, 35 et seq.
It was stipulated that 'Conger was discharged from his employment' by Stores on April 3, 1961. When 'discharged from his employment,' Conger's status as an employee terminated. There was a complete severance of the employer-employee relationship. Although Conger, at the time of his discharge, was entitled under his employment contract and Stores' regulations 'to three (3) weeks of accumulated pay for vacation time,' he was not, after April 3, 1961, an employee of Stores. There is no merit in the suggestion that Conger was an employee on vacation during the three weeks following his discharge on April 3, 1961. Perry v. Equitable Life Assurance Society of U. S., 139 N.E.2d 489 (Ohio Com.Pl.).
As indicated, the stipulated facts establish that Conger's employment by Stores terminated on April 3, 1961, not on April 24, 1961, as stated in plaintiff's quoted allegation. Since Conger's death occurred more than thirty-one days after April 3, 1961, the date of the termination of his employment, his insurance under the group policy was not in force on May 22, 1961, the date of his death. Hence, the court was correct in adjudicating plaintiff was not entitled to recover from Insurance Company. See Annotation, 68 A.L.R.2d...
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