Garnsky v. Metro. Life Ins. Co.

• Decision Date: 10 October 1939
• Citation: 287 N.W. 731,232 Wis. 474
• Parties: GARNSKY v. METROPOLITAN LIFE INS. CO.
• Court: Wisconsin Supreme Court

232 Wis. 474

287 N.W. 731

GARNSKY

v.METROPOLITAN LIFE INS. CO.

Supreme Court of Wisconsin.

Oct. 10, 1939.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Affirmed.

Action in the civil court, Milwaukee county, by Frank Garnsky, plaintiff, against Metropolitan Life Insurance Company, a foreign corporation, Chevrolet Motor Company, and General Motors Corporation, defendants, to recover the sum of $2,000 claimed to be due under a certificate of life insurance issued by defendant insurance company which contained a total and permanent disability provision. Subsequently, the action was dismissed as to the Chevrolet and General Motors Companies and proceeded against the insurance company alone. The action was tried to the court without a jury. Findings of fact and conclusions of law were made and entered, and judgment for plaintiff was ordered. Judgment was entered on November 9, 1938, in the sum of $2,100 principal, $633.19 interest, and costs amounting to $37.33. Defendant thereupon appealed to the circuit court for Milwaukee county which affirmed said judgment. Judgment was entered in the circuit court on December 28, 1938. Defendant appeals. The material facts will be stated in the opinion.Rowland W. Stebbins, of Milwaukee (Bloodgood, Kemper & Passmore and William E. Burke, all of Milwaukee, of counsel), for appellant.

Swietlik & Swietlik, of Milwaukee (Niven & Mullaney, of Milwaukee, of counsel), for respondent.

WICKHEM, Justice.

[1] This controversy calls for the construction of a policy of group insurance. On November 22, 1928, defendant issued to General Motors Corporation and its subsidiaries, including the Chevrolet Motor Company, a group policy of insurance. A group insurance contract is made between the insurer and the employer and ordinarily constitutes a gratuity or partial gratuity in that the employer pays the whole or part of the premium. The privileges and benefits of this insurance are open to the employees of the contracting employer. In this policy the employees paid a portion of the premium and the balance was paid by the employer. The clause of the policy that gives rise to this controversy is as follows:

“(c) Total and Permanent Disability Benefits. Upon receipt by the company of due notice and proof-in writing-that any employee has, (1) while insured hereunder, (2) prior to his sixtieth birthday and (3) after having been continuously employed by the employer for two full years, become totally and permanently disabled, as a result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation and performing any work for wage or profit, the company will discontinue the life insurance in force on the life of said employee and three months after receipt of such proof, will commence to pay, subject to the terms hereof, in lieu of the payment of life insurance at his death, monthly instalments as defined below to the said employee or to a person designated by him for the purpose; provided that if such disability is due to, or is accompanied by, mental incapacity, the instalments may be paid to the beneficiary of record of the said employee, and the company will continue such payments for the period provided below, should said employee continue totally and permanently disabled.”

The defense is that plaintiff, an employee of the Chevrolet Motor Company who had applied for and received a policy of group insurance, had not been “continuously employed by the employer for two full years” prior to his disability.

Consideration of the issue requires a brief statement of the facts. In May, 1927, plaintiff began his work for the Chevrolet Motor Company. On September 29 of that year, he made application to the employer for $1,000 group life insurance and authorized the employer to make the required deductions from his pay to be applied towards the cost of the insurance. Except for a short lay-off due to an accident, plaintiff was employed until June 22, 1930, on which date the Chevrolet Company closed its plants and plaintiff was laid off. The employer issued a quit slip on that date, stating that plaintiff was “leaving company service” because the company was reducing its force. The company also entered upon plaintiff's insurance card a notation of cancellation of the policy as of June 20. Thereafter, until December 22, 1930, plaintiff was not in actual service at the Chevrolet plant and received no wages. He was called back to the plant on the latter date and put to work. A new employment card was filled out and a different clock number given plaintiff. Under the policy employees did not become eligible for group insurance until they had had three months of continuous service. On March 22, 1931, precisely three months after his return to service, plaintiff applied for and received a new policy. On or about June 26, 1931, plaintiff sustained a paralytic stroke and became totally disabled. Upon these facts the question is whether plaintiff is to be considered as having been continuously employed by the employer for two full years prior to the date of his permanent disability.

It is contended by defendant that this is a question of law and not of fact, that so far as the policy here involved is concerned, plaintiff's employment commenced on December 22, 1930, and that the facts are undisputed that when plaintiff was laid off on June 22, 1930, his employment ceased. The effect of this contention is, of course, obvious. If the period of plaintiff's lay-off, that is, from June 22, 1930, to December 22, 1930, is to be considered a break in his employment, he was not continuously employed for a period of two years prior to the disability. The case is not without difficulty, but we conclude that it was properly disposed of by the trial court.

[2] In construing the Workmen's Compensation Act, St.1937, § 102.01 et seq., this court has considered that an employee, who has been temporarily laid off because of lack of work, with the expectation that he will be called back when there is work, has not terminated his employment or ended the relation of employer and employee so far as the application of the act is concerned. Wisconsin Granite Co. v. Industrial Commission, 208 Wis. 270, 242 N.W. 191;Michigan Quartz Silica Co. v. Industrial Commission, 214 Wis. 289, 252 N.W. 682;Jackson Monument Co. v. Industrial Commission, 220 Wis. 390, 265 N.W. 63. While this doctrine is not conclusive as applied to the problem of construction here involved, it has considerable weight at least when considered in connection with the rule...