Elliott v. Occidental Life Insurance

SHOEMAKER, P. J.

On a prior appeal from a summary judgment entered in favor of defendant, we reversed the judgment and held that plaintiff was entitled to a trial on the question as to whether the policy issued to plaintiff’s husband had remained in effect under the clerical error provision contained therein.

(Elliott

v.

Occidental Life Ins. Co.

(1964) 225 Cal.App.2d 510 [37 Cal.Rptr. 525].)

We do not set forth the pleadings as the opinion heretofore rendered presents them fully.

Upon remand, the ease proceeded to trial before a jury, and the following evidence was produced:

On April 1, 1954, while he was an employee of the Oroweat Baking Company of San Francisco, Robert Elliott was issued an individual certificate of life insurance naming plaintiff as his beneficiary. The insurance in question was made avail

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able to Elliott under a pre-existing master policy which had been issued to the Western Conference of Teamsters for Bakery Driver-Salesmen in Northern California. The Oroweat Baking Company of San Francisco was a qualified sub-group under the master policy with the union.

The Oroweat Baking Company of San Francisco made one premium deduction on Elliott’s behalf and duly forwarded same to defendant insurer. However, Elliott was thereafter transferred to the Oroweat Oakland Bakery, and the Oroweat Baking Company of San Francisco immediately ceased to make any further premium deductions on his behalf. Although the Oroweat Oakland Bakery was also a qualified sub-group covered by the master policy with the union, the Oroweat Oakland Bakery made no premium deductions on Elliott’s behalf following his transfer.

Elmer Fisher, who was controller of the Oroweat Baking Company of San Francisco in 1954, testified that the company was a corporation, whereas the Oroweat Oakland Bakery was a copartnership. However, the same three individuals owned all of the stock in the corporation and also constituted the three partners of the Oakland company. He further stated that the two companies used trucks of the same color and distributed the identical bread. All of the baking was done by the San Francisco company, and the Oakland company acted solely as a distributor. Both companies were represented by the same attorney, and the records and correspondence of both companies were kept in the San Francisco office. Drivers employed by the two companies received the same rate of pay, and their paychecks issued from the San Francisco office. Fisher further stated that when employees of the Oakland company went on vacation, employees of the San Francisco company would be “loaned” to the Oakland company to serve as vacation relief. Employees of both companies were invited to a joint Christmas party. Fisher also testified that when the Oakland copartnership was dissolved in 1956 or 1957, it was taken over by the San Francisco corporation.