
    Thull, Admx., v. The Equitable Life Assurance Society.
    (Decided September 30, 1931.)
    
      Mr. Lewis Brucker, for plaintiff in error.
    
      Messrs. McBride <& Wolfe, for defendant in error.
   Sherick, P. J.

The plaintiff’ in error, Eva K. Thull, administratrix, who was the plaintiff in the court of first instance, sought to recover of the assurance society on a policy of insurance issued by the society upon the life of one John Mohler, who had been an employee of the Barnes Manufacturing Company. The contract of insurance was what is known as a group insurance plan policy, and was issued by the society to the Barnes Company.

The answer made to the claim of the plaintiff was a general denial, and as a second defense it was averred that Mohler at time of death was not in the employ of the Barnes Company, and hence was not insured under the terms of its contract with the Equitable Life Assurance Society. A reply denies the new matter, and upon the issues joined the cause was submitted to the court without the intervention of a jury and it was adjudged that the petition be dismissed and judgment entered for the assurance society. From this judgment error is prosecuted.

It is shown that prior to July 17, 1930, Mohler had been in the company’s employ, and upon that date was temporarily discharged. Thereafter, on August 3, 1930, Mohler was instantly killed in an automobile accident.

Further, it is disclosed that Mahler’s employment by the Barnes Company was for no particular time, and it would follow that he could have quit or been discharged at any time. He never worked for the company after July 17th, and at that time he was paid in full. At the time, however, of his discharge, the sum of sixty cents was deducted by the company out of his pay in payment of insurance for the month preceding his discharge. No insurance was collected from him thereafter.

The plaintiff in error makes much of the fact that Mohler’s lay off was temporary in character, that he might have been recalled for work, that is, if he chose to return, but in view of our opinion, hereinafter expressed, we now take the position that it is immaterial whether the lay off was temporary or permanent, for the reason that the contract of insurance existing between the society and the employer is decisive thereof, in that it does not differentiate between a temporary and a permanent discharge.

The errors complained of, in fact, all go to the matter of the contract’s construction, and it may now be said that the certificate delivered by the employer to the employee is no part of the contract of insurance; but that the contract consists of the policy issued by the society to the employer and the application therefor. The employee’s certificate is only a recitation of his right to protection under the terms of the contract so long as the conditions of the policy are complied with.

The policy provides that the employees of the company are insured for the term or such part thereof as “they shall respectively remain in the employment of-the employer.” Section 6 of the policy further provides: “The insurance under this policy upon the life of any employee shall automatically cease upon his discontinuance of participation, as evidenced in writing signed by him and filed with the Society, or upon termination of his employment with the employer in the classes of employees- insured hereunder, without regard to the cause of such termination.”

It appeals to us that these two excerpts from the contract are clear and unambiguous, and therefore need no construction of the simple and understandable language used therein.

We find that the policy contains a further provision in that “the employer may elect that all employees who, while insured hereunder, are temporarily laid off or given leave of absence, * * * shall be considered to be in the employment of the employer during such period,” but this is further made dependent upon the employer performing certain things, and upon certain conditions, which it is now conceded the employer did not perform and comply with.

It is well settled in law that when a contract is made for the benefit of another — the employee in this case — he can have no greater rights under that contract than is provided thereby. The fact that the employer did not do certain things to keep the insurance in force during his lay off cannot be chargeable as against the insurer, and specially must this be true in that the company was not bound to do these things which the plaintiff in error now says the employer should have done.

The deduction of the sixty cents from the wages of the decedent at the time of his discharge for the previous month’s insurance is strongly urged, as is also the fact that the employer made report to the insurer on August 4th of his discharge, which by the terms of its contract it was bound to do within the month. And, further, the company sought to ascertain if Mohler’s estate was entitled to benefits. But these facts do not work an estoppel or place the society in any position from which it may not now recede.

We note further from the policy that it was within the power of the employee to have obtained an individual policy within a certain period after his discharge. This he did not do, and it now seems hardly fair or just that complaint be now made of that which he could have done for himself. The employee’s certificate apprised him that termination of his employment ended the insurance in his favor, and neither the employer nor the insurer was under a duty to notify him that he was not covered by insurance.

The defendant in error calls our attention to Ætna Life Ins. Co. v. Lembright, 32 Ohio App., 10, 166 N. E., 586, Couch Cyclopedia of Insurance Law, vol. 6, Section 1359; Beecey v. Travelers Ins. Co., 267 Mass., 135, 166 N. E., 571; Kowalshi v. Ætna Life Ins. Co., 266 Mass., 255, 165 N. E., 476, 63 A. L. R., 1030, and Chrosniak v. Metropolitan Life Ins. Co., 121 Misc. Rep., 453, 201 N. Y. S., 211, which we have examined and find to be ample support for the rule adopted in this controversy.

The judgment of the court of common pleas is found to be correct, and not contra to the law and the evidence, and we find no error in either the admission or exclusion of evidence. The motion for a new trial was rightly overruled, and the judgment will therefore be affirmed.

Judgment affirmed.

Lemert and Montgomery, JJ., concur.  