DISSENTING OPINION OF
TSUKIYAMA, C. J.Upon the record of this case, I am impelled to join in the dissenting opinion of Mr. Justice Wirtz. While I am in agreement with the views and conclusion reached by him, I deem it appropriate to give further emphasis to *134certain salient aspects of the case.
* ■ it is not disputed that Elmhorst was, after the expiration of his sick leave, advised by representatives of Gaspro, the employer and policyholder, that upon his disability retirement, the Prudential group life insurance policy would expire and that he should consider the matter of a conversion to an individual type of policy, which could be done in thirty-one days after termination of service. Though there appears to be some dispute as to whether Elmhorst positively declined to accede to the suggestion, his failure to convert was a decisive answer. In any'event, that phase is immaterial. A “Notice of Retirement Status;” dated January 22, 1958, was forwarded by Gaspro to Prudential showing Elmhorst’s retirement, effective March 3,1958. Noteworthy is the fact that Elmhorst personally signed the notice on January 28, 1958. True, the notice was given under the Prudential group annuity contract and not under the Prudential group life insurance policy, but it sufficed as a personal acknowledgment by Elmhorst that he was retired.
Moreover, Elmhorst knew that he no longer contributed any premium to the group insurance, his final payment having been deducted from the payroll on December 6,1957, up to which time he was receiving his sick pay. His death occurred on October 25, 1958.
As shown by the evidence, it was the established practice between Prudential and Gaspro for the latter as policyholder to pay the premiums at the beginning of the policy year, subject to adjustment by the former at the end of the year based upon information received from the latter. Refunds, additional contributions, or other corrections would be made as disclosed by the calculation.
It is further shown by the uncontradicted evidence that Gaspro had adopted a policy not to cover retired employees as a class in group insurance; that such policy was *135known to Prudential and Elmhorst; that, through a clerical oversight, Gaspro did not give Prudential notice of the termination of Elmhorst’s insurance; and that Elmhorst had no knowledge of such mistake. The existence of Gaspro’s policy on retired employees and of the adjustment procedure aforesaid precluded Elmhorst, who knew that he was actually retired and no longer paying any premium, or his beneficiary, from claiming any right to coverage under the group insurance on the ground that Gaspro had failed to notify Prudential of the retirement.
The cases cited are distinguishable in that in the instant case at least “Notice of Retirement Status,” signed by Elmhorst, was given by Gaspro to Prudential. Though the “Notice of Group Insurance Changes” was the form used for group insurance purposes, as distinguished from the form used in annuity contracts, in either case the parties involved were the same, i.e., Prudential, Gaspro and Elmhorst.
It is my view that the provision in the group insurance policy in respect to the giving of notice of termination could not be fairly and reasonably construed, under the circumstances of this case, as creating in Elmhorst any right, through a mistake in the matter of notification, to recover on the policy, thus giving him a windfall and unjust enrichment. Equitable Life Assurance Society v. McDaniel, 223 Ky. 505, 3 S.W.2d 1093.