October 18, 1930. The opinion of the Court was delivered by This is an action on a group policy of insurance issued by the appellant on the lives of the employees of the Woodruff Cotton Mills. The complaint alleges that on December 20, 1927, one Floyd Cogsdill died, being at that time an employee of the mill and insured under the policy; that the plaintiff was his wife and the beneficiary of his insurance; and that the defendant was indebted to her under the terms of the policy, in the sum of $800.00 and interest from the date of her husband's death. The defendant answered, alleging that on September 12, 1927, Cogsdill's employment was terminated and the insurance, theretofore in force on his life automatically lapsed, and that the defendant was released *Page 373 from any further liability of any kind on account of such insurance A further defense was that even if the insurance had been of force at the time of Cogsdill's death, no proof of his death had been received by the defendant at its home office in the City of New York, as required by the terms of the policy as a condition precedent to the payment of any insurance thereunder.
The case was tried at the September, 1929, term of the Court of Common Pleas for Union County, before Hon. R. T. Wilson, Special Judge. At the close of all the testimony, the defendant made a motion for a directed verdict which was refused by the Court. The jury found for the plaintiff the sum of $670.00. Two questions only are presented by the appeal: (1) Did the Court err in overruling the motion for a directed verdict? (2) Was interest recoverable on the amount of the insurance benefits from the date of the death of the insured, as charged by the Court?
As to the first question: The motion for a directed verdict was made upon the ground that the only reasonable inference to be drawn from the evidence was that Cogsdill was not covered by the group policy insurance at the time of his death on December 20, 1927, for the reason that his employment by the mill had terminated on September 14, 1927, and that he had not completed three months'. continuous employment from the date of his re-employment on October 6, 1927, so as to make himself eligible, the same as a new employee, for insurance under the group policy according to its provisions.
It is not disputed that Cogsdill was in the employ of the Woodruff Mills for a number of years prior to September 14, 1927, and at that date was covered, as such employee, by the group policy insurance; that on that date he quit work and went away, but returned some days later and again became engaged in work at the mill. The plaintiff testified that her husband was absent from his work about ten days for the purpose of making a visit to relatives; that in going away *Page 374 for such he had not quit his employment, but immediately resumed work in the mill upon his return; that he had previously made similar visits while an employee of the mill; and that such visits were not unusual among the mill employees. Other testimony tended to show that Cogsdill worked in the mill as a doffer both before his visit and after his return. There was testimony for the defendant to the effect that the mill regarded Cogsdill's leaving as a severance of his connection with it as one of its employees and notified the defendant insurance company accordingly; and that his status, upon his subsequent employment, was that of a new employee. There was no testimony that the mill notified Cogsdill that his employment was terminated or attempted to exercise any right it might have had to discharge him.
The trial Judge, in refusing the motion, made the following clear comment:
"I don't believe the insurance company nor the mills had it in mind that no one should go on a visit, but that from morning after morning, day in and day out, during the year, they must be continuously on the job, and I think from this testimony there is a question of fact as to whether or not this party went on a visit or whether or not there was a termination of employment. I say, I think the jury will have to pass on that, because I can't think continuous employment prevents one taking a visit, if there was a visit."
We think that the Court was right in refusing to direct a verdict. In passing upon defendant's motion he was bound to consider the testimony most favorable to the plaintiff. Under all the facts and circumstances as disclosed by the record, he could not say, as a matter of law, that Cogsdill's employment was terminated by his leaving the mill, and correctly submitted that question to the jury.
As to the second question, exception is taken to the charge of the trial Judge that the plaintiff would be entitled to recover interest from the date of insured's death on any *Page 375 amount the jury might find to be due her under the policy.
Where the amount to which the plaintiff is entitled is wrongfully withheld by the insurer after payment is due, interest on such amount may be allowed as damages in an action on the policy, to be calculated from here provided that payment should become due upon receipt by the company of due proof of the death of the insured. No formal proof of death was made, but the company denied all liability and refused payment, thus rendering such proof unnecessary and fixing the due date for payment in case of liability. The evidence does not disclose the date of the defendant's denial of liability, but clearly such denial was made before the commencement of the action. By their verdict, the jury indicated that the plaintiff was entitled to interest; but under the charge of the Court, they computed the interest from the death of the insured, December 20, 1927. In view of these circumstances, the appellant cannot complain if it be required to pay interest on the amount found, from the date of the commencement of the action, January 25, 1928, instead of from an earlier date. We think, therefore, that the appellant should have remitted to it on the judgment rendered the interest on $600.00 at 7 per cent. from December 20, 1927, to January 25, 1928, which amounts to $4.08.
It is therefore the judgment of this Court that unless the plaintiff remits upon the record, within ten days after the filing of the remittitur, the sum of $4.08, the judgment be reversed and a new trial granted; but that if she so remits the sum of $4.08, judgment is affirmed for $665.92.
MESSRS. JUSTICES BLEASE and CARTER, and MR. ACTING ASSOCIATE JUSTICE MENDEL L. SMITH concur.