Appeal, No. 433, Oct. T., 1959, from decree of Municipal Court of Philadelphia County, Jan. T., 1958, No. 2702, in equity, in case of William F. Benat v. Mutual Benefit Health & Accident Association. Decree affirmed.
Robert H. Malis, with him David S. Malis, and Malis, Malis & Malis, for appellant.
Walter B. Gibbons, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 191 Pa. Super. Page 549]
William F. Benat filed a complaint in equity against Mutual Benefit Health and Accident Association, hereinafter referred to as Mutual, seeking to secure a judicial declaration that a certain government employes' policy of insurance was in full force and effect, and to compel the acceptance of renewal premiums tendered thereon. Mutual filed an answer to the complaint, and the matter was submitted to the hearing judge upon the pleadings as offered in evidence. The hearing judge subsequently entered an adjudication with decree nisi dismissing the complaint. Benat's exceptions to the adjudication were dismissed by the court en banc, and the decree nisi was entered as the final decree. Benat has appealed.
The record discloses that appellant was formerly employed by the United States Government and is now over seventy years of age. On August 17, 1942, appellant applied for and Mutual issued a policy providing benefits for certain losses by accidental means or by sickness. Appellant's initial payment covered insurance to December 1, 1942, and the policy as issued required
[ 191 Pa. Super. Page 550]
quarterly payments of $8.25, commencing on that date. Clause (e) of the additional provisions in the policy provides, inter alia, as follows: "The acceptance of renewal premiums shall be optional with the association". Paragraph 15 of appellant's application for the policy contained a statement that he had previously undergone a hernia operation with the result a "complete success". Under date of August 5, 1944, Mutual submitted and appellant executed a specific disability elimination rider which is set forth in the footnote.*fn1 The policy thereafter remained in full force and effect until September 1, 1957 when Mutual refused to accept the premium due on that date.
It is conceded by appellant that, prior to the execution of the specific disability elimination rider, "the policy was cancellable at any renewal date by the mere expedient of the company refusing to accept the stated premium". However, appellant contends that the specific disability elimination rider converted the policy from a cancellable to a non-cancellable contract. On the other hand, the position of Mutual, sustained by the court below, is that the policy continued to be a term contract, that its renewal option was not affected by the specific disability elimination rider and was valid and enforceable.
We are of course in agreement with appellant's contention that an insurance ...