United Life & Accident Insurance v. Braffman

JENNINGS, J. This case was submitted on the admitted allegations of the complaint, the second prayer for relief being withdrawn in open court. The plaintiff seeks a declaratory judgment as to the rights of the defendant under a clause in its policy reading as follows: “The insurance under this policy shall not cover any person under the age of 15 years nor over the age of 60 years. Any premiums paid to the Company for any period not covered by this policy will be returned upon request.” While the defendant cites one case in point (Moest vs. Continental Casualty Co., 55 Misc. (N. Y.) 128), the quotation is a dictum and the case was decided for the defendant on another ground sustained by the Appellate Division without opinion. The weight of authority is that the wording of the clause *259 is not ambiguous and not subject to construction and that an insured suffering an accident after reaching the age of 60 cannot recover. Wheeler vs. U. S. Casualty Co., 71 N.J.L. 396; Krmicak vs. Federal Life Ins. Co., 252 Ill. App. 232; 2 Cooley on Insurance Second Edition, Page 1395. The answer to 9 (a) is “no” and the plaintiff may take judgment accordingly.