Baker v. Travelers Insurance ( 1932 )

Per Curiam.

On 28 May, 1927, the defendant issued to Tolar, Hart • and Holt Mills a group life policy of insurance on the life of Troy Baker in the sum of $1,500, payable to Helen Baker, his wife, as beneficiary, if death should occur during the continuance of the policy while the employee was insured thereunder. The employment of Troy Baker with the Tolar, Hart and Holt Mills ended on 1 July, 1930, and he died on 28 November, 1930. The action was begun on 7 April, 1931.

The policy contains the following clauses:

“Tbe insurance of any employee covered bereunder shall end wben bis employment witb tbe employer shall end, or prior thereto wben tbe employee shall notify tbe employer to make no further deductions from bis pay to apply toward tbe premium for this insurance, except in a case where at tbe time of termination of employment tbe employee shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation of employment for wage or profit. In such case tbe insurance will remain in force as to such employee during tbe continuance of such disability for tbe period of' three months from tbe date upon which tbe employee ceased to work, and thereafter during tbe continuance of such disability and while this policy shall remain in force until tbe employer shall notify tbe company to terminate tbe insurance as to such employee.”

Tbe plaintiff offered evidence tending to show that tbe insured was “wholly disabled” wben bis employment ceased. But under tbe contract-tbe insurance was to be paid if tbe death of tbe insured occurred during tbe continuance of tbe policy. Tbe plaintiff’s evidence is that “tbe insurance on tbe life of Troy Baker was canceled 12 September, 1930.” Tbe death, therefore, did not occur “during tbe continuance of said policy.” According to her evidence tbe plaintiff brought suit on a void policy. She argues that tbe cancellation was effected without authority; but she neither alleged in her complaint that the cancellation was wrongful or illegal nor suggested her purpose to attack it for illegality when she offered her evidence. In tbe absence of allegation or proof to this effect tbe cancellation is presumed to have been made lawfully. Judgment

Affirmed.