Opinion
Argued May 18, 1938 —
Decided September 16, 1938.
Plaintiff's decedent was employed by defendant insurance company as a field agent, and after serving thus for one year received from his employer a service mortuary benefit certificate which specified certain conditions and benefits. Some eight months later the company terminated his employment, rehiring him six months thereafter, and in the interim it continued the benefit certificate. Two months thereafter he died while in defendant's employ. Plaintiff sued on the certificate, and at the trial defendant contended there was no consideration for the issuance of the certificate, and that decedent had not been in its continuous employ. The certificate recited the consideration to be a recognition of continuous and faithful service. Held, that while faithful service cannot constitute consideration, the employer being entitled thereto, yet continuous service may, and since there was ambiguity in the certificate as to what constituted continuous service it must be most strongly construed against the insurer and raised a question of law which was properly decided by the trial judge.
On appeal from the Supreme Court.
For the appellant, Starr, Summerill Lloyd ( Alfred E. Driscoll, of counsel).
For the respondent, French, Richards Bradley ( Blaine E. Capehart, of counsel).
Goldberg entered the employ of the John Hancock Mutual Life Insurance Company of Boston, Massachusetts, a corporation, on February 5th, 1930, at its Philadelphia, Pennsylvania office as a field agent. He completed one year of continuous service, and on February 11th, 1931, received the company's service mortuary benefit certificate which specified certain conditions and benefits.
The company terminated Goldberg's employment on October 31st, 1931, rehiring him on April 19th, 1932, and in the interim, its board of directors voted to continue the service mortuary benefit certificates for the year 1932.
Goldberg died on June 5th, 1932, and he was, at the time of death, a field agent in the company's employ. The administratrix of his estate claimed death benefits under the aforesaid certificate, and her suit thereon resulted in a directed verdict for $1,329, and the company alleges error.
In determining this appeal it is necessary to ascertain if the service mortuary benefit certificate is supported by consideration, and if so, did Louis J. Goldberg meet its requirements.
The consideration, if any, is set forth in the certificate as follows: "This mortuary benefit is given as a recognition of continuous and faithful service."
Faithful service cannot constitute consideration, the employer being entitled thereto, but continuous service in the case at bar does, on the theory that the appellant (promisor) at its request benefited thereby. Coast National Bank v. Bloom, 113 N.J.L. 597, and Levine v. Blumenthal, 117 Id. 23.
The certificate, as written by the company, and as continued for the year 1932, cannot be said unequivocally to require continuous service of an employe from the date of employment until death, in order that the benefits be payable. It can be argued, and with force we believe, that an employe who has been in the continuous service of the company for one full year is entitled to the benefits if he die in the service of the company, even though there is a break in his employment, and if this be so, there is an ambiguity which must be most strongly construed against the insurer. Fleming v. Connecticut General Insurance Co., 116 N.J.L. 6 ; Michler v. New Amsterdam Casualty Co., 104 Id. 30; affirmed, Ibid. 663.
We therefore fail to find error in the trial court's construction, and the judgment below is affirmed. For affirmance — THE CHIEF JUSTICE, TRENCHARD, PARKER, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 12.
For reversal — THE CHANCELLOR, CASE, BODINE, PORTER, JJ. 4.