present case. The insurance plan offered by the company was different from that which the applicant had requested; the applicant had never applied for nor accepted the insurance which, but for his death, might have been offered to him. The company merely had before it Stimmel's application for the type of insurance for which he had applied. This it rejected. It did nothing more than decide that it would offer Stimmel another more expensive type of insurance; no such offer of insurance was ever communicated to Stimmel nor accepted by him.
Plaintiff contends that the present case is controlled by Stonsz v. Equitable Life Assurance Society, 324 Pa. 97, 187 A. 403, 107 A.L.R. 178 (1936). The facts of the Stonsz case, however, are distinguishable.
In the Stonsz case, the plaintiff on June 28, 1927, applied for type 'A' insurance, which provided death benefits with double indemnity and annuity payments for disability. In return for the payment of the estimated first premium on this insurance, plaintiff received a receipt, which for present purposes contained the same provision (insurance shall take effect as of the date of application) as the conditional receipt in the present case. The insurance company in the Stonsz case decided that because of plaintiff's dangerous occupation, it would not extend to him type 'A' insurance, but was willing to and did issue to him a policy for type 'B' insurance, which provided death benefits without double indemnity and disability provisions exactly as applied for but at an increased premium rate. The company delivered this type 'B' insurance policy to Stonsz who accepted it on July 11, 1927. Stonsz was injured on June 30, 1927, after the date of application for type 'A' insurance, but prior to the date that he accepted the company's offer of type 'B' insurance. He was permitted to recover on the type 'B' insurance policy for these injuries.
The court held that a contract of insurance for type 'B' coverage had been made between the plaintiff and defendant. The court further held that since the type 'B' insurance policy did not specifically provide an effective date when insurance coverage would commence, it incorporated and adopted the effective date of coverage specified in plaintiff's application for type 'A' insurance. Accordingly, the contract of insurance related back to and insurance coverage commenced from the date of plaintiff's application.
In the case before this court, we are not concerned with determining when an admittedly existing contract of insurance was to take effect, but whether in fact a contract of insurance ever came into existence. The Stonsz case is clearly distinguishable.
Plaintiff also relies on McAvoy Vitrified Brick Co. v. North American Life Assurance Co., 395 Pa. 75, 149 A.2d 42 (1959). In McAvoy, the alleged insured had applied for a $ 200,000 life insurance policy and at the same time had paid $ 2,966.75, the amount of the first year's premium on the policy requested. McAvoy died, and following his death, the company declined to issue the requested policy on the ground that under its rules the application was for too large an amount of coverage. At the time of the application and payment of the first premium, an 'Interim Assurance Certificate' was given to the applicant. The certificate provided in pertinent part:
'* * * The assurance * * * shall take effect if and when the company's authorized officers * * * shall determine (1) that the life to be assured was an insurable risk under the general practice * * * and (2) that the application is acceptable for an amount not to exceed that which the company accepts under the regular rule without reassurance on the plan applied for at the rate of premium applicable to the assurance applied for. Should the assurance take effect under this certificate, it shall thereupon be deemed to have taken effect from the date of the medical examination or declaration in lieu thereof * * *.'
Construing this interim certificate the court said:
'But the certificate is so worded as to indicate further that the coverage is subject to the condition that the applicant be found by the company's officers to be an insurable risk on the date of the medical examination. This we construe to refer to the applicant's physical condition.'
The application was rejected not because of the applicant's physical condition, but because the amount of insurance requested was greater than the company wished to issue to this applicant. Moreover, the court after pointing out that the certificate by its very title was one for interim insurance, held that the evidence demonstrated that the contract was entered into with knowledge on the part of the company's representative of the amount of insurance being applied for, with knowledge of the company's general practice in this respect and with authority to enter into such an insurance contract. Accordingly, a binding contract of temporary insurance was in existence at the time of the issuance of the interim certificate. The case is clearly distinguishable.
The other cases cited by plaintiff also are distinguishable on their facts and need not be discussed.
This is a non-jury case and, therefore, findings of fact and conclusions of law are required. Fed.R.Civ.P. 52(a). All the facts have been stipulated. The court adopts the stipulated facts as its findings of fact. This opinion will constitute its conclusions of law.
And now, this 16th day of June, 1964, plaintiff's motion for judgment in her favor is denied, except that the Clerk of the District Court is directed to enter judgment in favor of the plaintiff in the sum of $ 10.64 with interest thereon at six per cent per annum from April 21, 1958.