Cipa v. Metropolitan Life Insurance , 352 Pa. 298 ( 1945 )

This is an action of assumpsit on a policy of group life insurance insuring the lives of employees of Jones Laughlin Steel Corporation. Decedent, on January 5, 1942, was given a temporary lay-off. On January 7 he became an employee of National Tube Company and remained employed there until his death on February 11. Immediately upon his employment by National Tube Company he became insured under the group policy carried by that Company, which insurance was paid to plaintiff after decedent's death. The question now is whether she can also recover upon the group policy carried by Jones Laughlin. That policy provided that cessation of active work by an employee should be deemed to constitute the termination of his employment, except that in case of his absence from active work on account of a temporary lay-off for not longer than three months his employment might, for the purposes of the life insurance, be deemed to continue until terminated by the employer. The Superior Court, in a decision (155 Pa. Super. 339, 38 A.2d 518) which is now being affirmed by this court, held that, since Jones Laughlin did not terminate decedent's employment after his layoff, his employment there continued, and accordingly plaintiff was entitled to recover.

The Jones Laughlin policy provided that "The insurance of an employee insured hereunder shall cease automatically on the date of the termination of employment of such employee." It seems to me that the error in the decision of the Superior Court consists in the apparent assumption that a termination of decedent's employment could occur only through action by theemployer. An employee, employed at will or from week to week, can always, of course, himself terminate his employment, whether during the period of a lay-off or at any other time, and, if he does so terminate it, the insurance, according to the terms of the policy, would "cease automatically". Therefore, if, for example, decedent, on January 7, had formally said to Jones Laughlin: "I am leaving your employ and am taking a permanent job with the National Tube Company", could it possibly be held that he still remained insured under the Jones Laughlin policy? All that the policy provided, in the clause upon which the opinion of the Superior Court is based, was that a temporary lay-off should not in andof itself be deemed a termination of the employment, but had to be followed by an absolute discharge in order to accomplish that result. But that provision had nothing whatever to do with a termination of the employment by the employee.

The only question in the case, in my opinion, is whether, in taking work at the National Tube Company, decedent was merely securing a temporary employment pending the lay-off at Jones Laughlin, or whether he intended thereby to sever his employment with the latter entirely. In order to show that he was taking merely a temporary job plaintiff offered to prove that decedent's foreman at Jones Laughlin had given him a letter to be used in an effort to secure work at the National Tube Company until he could be recalled for further employment at Jones Laughlin. The trial court sustained defendant's objection to this offer and gave binding instructions for defendant but subsequently granted a new trial on the ground that it should have admitted the evidence thus rejected. This letter was pertinent to the question whether decedent was seeking only temporary employment with the National Tube Company or was permanently disassociating himself from his former employment, and the trial court, having refused its admission, was correct in therefore granting a new trial.

For the reasons stated I dissent from the affirmance of the decision of the Superior Court which reversed the order granting a new trial and entered judgment for plaintiff n. o. v.

Mr. Justice DREW concurs in this opinion.