Grove v. Equitable Life Assurance Society of United States

• Decision Date: 08 December 1939
• Docket Number: 213
• Citation: 336 Pa. 519,9 A.2d 723
• Parties: Grove v. Equitable Life Assurance Society of United States, Appellant
• Court: Pennsylvania Supreme Court

9 A.2d 723

336 Pa. 519

Grove v. Equitable Life Assurance Society of United States, Appellant

No. 213

Supreme Court of Pennsylvania

December 8, 1939

Argued October 4, 1939

Appeal, No. 213, March T., 1939, from orders of C.P Allegheny Co., Jan. T., 1938, No. 416, in case of Laura M Grove v. Equitable Life Assurance Society of the United States. Judgment affirmed.

Assumpsit. Before T. M. MARSHALL, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff. Defendant appealed.

Error assigned, among others, was refusal of judgment n.o.v.

The judgment is affirmed.

Henry Eastman Hackney, with him Seward H. French, Jr., Reed, Smith Shaw & McClay and Karl W. Warmcastle, for appellant.

Elverton Hazlett Wicks, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, LINN, STERN and BARNES, JJ.

OPINION

MR. MAXEY, JUSTICE

Laura M. Grove sued the defendant for $2,000 insurance on the life of her husband, John W. Grove. The jury returned a verdict for the amount of the claim plus interest, to wit: $2,860.00. Defendant's motions for judgment n.o.v. and for a new trial were denied and this appeal followed.

On June 30, 1926, Grove, who was a clerk employed by the Carnegie Steel Company, purchased a participating certificate in the amount of $2,000.00 in Group Policy No. 2181, issued by the defendant to the Homestead Steel Works Employees Insurance and Safety Association of Carnegie Steel Company. In the spring of 1931, Grove became ill but he continued working until June 9, 1931. He was unable to work thereafter. The superintendent took the insured's employment card and wrote thereon: "Terminated June 15, 1931, and paid to June 30th, inclusive." Later he cancelled this termination by drawing a line through what he had written and then wrote: "Leave of absence for two months with the understanding he will not be back to this department." The card shows a further notation: "Leave of absence extended 2 months 8-31-31." This meant that the leave of absence was extended to October 31, 1931. Below this appears the notation: "Died 11-27-1931," i.e., November 27, 1931. No termination or notice of discharge appears upon the employment card which constitutes the official employment record of Grove with the Carnegie Steel Company.

William M. Menk, the Assistant Superintendent of the Plate Department of the steel company, testified that when an employee's connection with the company is finally terminated, he is given "a written termination notice through the employment office." He was asked: "Did you give him [Grove] such a notice?" He answered: "To the best of my knowledge. Q. After that did you grant him a leave of absence? A. I did, for two months from July 1, 1931." He gave as a reason for the leave of absence the following: "Necessary reduction in force. . . . Then he asked for leave of absence which would enable him to seek employment without any unnecessary hardship on his part in the plant." He said that the leave of absence was extended and that he signed the extension. There was no other leave of absence. He also admitted that he "scratched out" the notation on the employment card: "Terminated June 15, 1931." The reason he did this was because of Grove's request for a leave of absence. After the re-instatement of the employee by striking out the termination phrase on the employment card, there is no evidence in the record of either a written or oral termination or discharge notice having been given to this employee. The insurance company claims that the insured's employment was terminated prior to his death and that therefore the following provision of the policy becomes operative: "Termination and Conversion: The insurance upon the life of any member shall automatically cease upon his discontinuance of participation as evidenced in writing signed by him and filed with the Society, or upon termination of his membership in said Association or upon his ceasing to follow the occupation above specified."

The court below in its opinion correctly said: "The chief question to be decided is 'Was there sufficient evidence of the deceased's employment at the time of his death to submit this case to the jury and to uphold a verdict?' If the deceased was not an employee, naturally his executrix would have no right to recover. If he was an employee at the time of his death, she has."

In view of the fact that the words: "Terminated June 15, 1931, and paid to June 30th, inclusive," on the employment card were later cancelled, the only significant thing remaining on the card is the following: "Leave of absence extended 2 months 8-31-31," and beneath that: "Died 11-27-1931." The court below in its opinion said. "What is the legal effect of the before-cited notations? It seems to the trial judge that it is very clear that the deceased still held the position of an employee. The striking out of the word 'terminated' means that the plaintiff was not discharged and the words 'leave of absence' we believe are the equivalent of the words 'the deceased was granted a vacation.' If that were not so and if deceased did not still have a connection with the plant it would not have been necessary to have written on his employee's card that there was a continuation of his leave of absence. And this conclusion becomes stronger when his employee's card showed that there was a notation made of his death." Though it was testified by the Assistant Superintendent that when an employee's employment ceases, he gets a termination notice, it is a fact that Grove never received such a notice.

In the case of Ozanich v. Metropolitan Life Insurance Co., 119 Pa.Super. 52, the beneficiary of a group insurance policy brought an action to recover an amount specified in the policy which had been issued to her late husband, an employee of the Pressed Steel Car Company. The policy provided that $1,000 would be paid the beneficiary "if death occurs while the employee is in the employ of the employer and while said group policy is in force." The question was whether or not his death occurred during his employment. President Judge KELLER says in that case: "Ozanich was unquestionably an employee of the company on December 31, 1924 [when the group policy was issued]. He admittedly remained such an employee up to and including December 14, 1932. There is no competent proof in the case that following that date he was discharged, or that his employment was ever terminated by himself or his employer, within the meaning of the policy, or that he was even 'laid off,' prior to his death on January 4, 1933. . . . The only question at issue, then, was whether Ozanich's death occurred while he was in the employ of the Pressed Steel Car Co. . . . The foreman of the employer admitted that Ozanich worked for the company on December 14, 1932, and no one testified that he had thereafter been discharged or had been notified that he was no longer in the employ of the company." The Superior Court held in that case that "there was ample evidence to support a finding by the jury that Ozanich was an employee of the Pressed Steel Car Company, within the meaning of the policy, on the day of his death."

The Secretary of the Employees' Association Union testified in the case at bar that he terminated the...