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KELLY v. MONTOUR RAILROAD COMPANY ET AL. (06/15/61)

June 15, 1961

KELLY
v.
MONTOUR RAILROAD COMPANY ET AL., APPELLANTS.



Appeals, Nos. 36 and 143, April T., 1961, from order of Court of Common Pleas of Allegheny County, Jan. T., 1959, No. 254, in case of Eugene V. Kelly v. Montour Railroad Company et al. Order reversed; case remanded.

COUNSEL

Jack W. Plowman, with him Rose, Houston, Cooper & Schmidt, for railroad, appellant.

Thomas Lewis Jones, with him Richard C. Witt, for insurance company, appellant.

Samuel J. Goldstein, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Watkins

[ 195 Pa. Super. Page 588]

OPINION BY WATKINS, J.

These appeals are from an order of the Court of Common Pleas of Allegheny County by the Montour Railroad Company and the Equitable Life Assurance Society of the United States, the appellants, directing the reinstatement of a policy of insurance on the life of Eugene V. Kelly, the appellee.

The appeals grew out of an action in equity to reinstate a policy of group life insurance bought by

[ 195 Pa. Super. Page 589]

Kelly, an employee of Montour Railroad Company against the railroad and insurance company. When the case came to trial both sides agreed to submit the case on briefs. The chancellor directed the reinstatement of the policy and the court en banc on exceptions to his findings and conclusions dismissed them and sustained the order.

The facts are as follows: Kelly was employed as a trainmaster by the appellant railroad. On March 5, 1942 he was issued an individual certificate of life insurance under a group contract which the railroad had with the appellant insurance company, in the amount of $5000. The group policy contained, inter alia, a section entitled "Individual Terminatio(" which said:

"The insurance hereunder of any employee shall cease automatically upon the occurrence of any of the following events: (1) The termination of this policy, (2) The cessation of premium payments on account of such employee's insurance hereunder, (3) The termination of his employment in the classes of employees insured hereunder. Cessation of active work by an employee shall be deemed to constitute the termination of his employment except that under the circumstances stated below the Employer may, for the purposes of the insurance hereunder and by filing written notice with the Society, regard employees as still in the employment of the Employer for the respective periods stated: (a) Where the employee is retired on pension or becomes disabled by injury or disease: for the full period of such retirement or disability. (b) Where the employee is given leave of absence or is ...


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