Kenney v. Boston Mut. Life Ins. Co.

• Decision Date: 28 June 1940
• Citation: 306 Mass. 282,28 N.E.2d 490
• Parties: KENNEY v. BOSTON MUT. LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 282

28 N.E.2d 490

KENNEY

v.BOSTON MUT. LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1940.

Exceptions from Superior Court, Suffolk County; Kirk, Judge.

Action of contract by Bridae V. Kenney against the Boston Mutual Life Insurance Company to recover the amount of a life insurance policy. The jury was ordered to return a verdict for defendant, and plaintiff brings exceptions.

Exceptions sustained.Edward M. Dangel, D. S. Miller, and G. A. Goldstein, all of Boston, for plaintiff.

R. B. Johnson, of Boston, for defendant.

DOLAN, Justice.

This is an action of contract by the plaintiff beneficiary of a life insurance policy to recover the amount of the policy ($5,000) from the defendant. At the close of the evidence upon motion of the defendant, and subject to the plaintiff's exception, the judge ordered the jury to return a verdict for the defendant. The policy of insurance, together with other exhibits, is made a part of the record.

At a pre-trial hearing it was stipulated that the defendant issued the policy in question to the plaintiff's husband and that the plaintiff is named as beneficiary therein. At the trial the parties agreed that the ‘only issue in the case is whether or not the insured exercised his option which extended the insurance in accordance with the terms of said policy.'

There was evidence that the policy was taken out at the Waltham office of the defendant, and that the premiums were paid at that office. The Waltham office is a branch office of the defendant, where ‘policies are sold, premiums received, and [where] everything pertaining to selling insurance is conducted. * * * Matters in connection with extending insurance policies would be dealt with at the Waltham office and the forms would be sent to the Boston office; the Waltham office had no authority to grant any applications for extended insurance.’ ‘If a letter came in which should go to the Boston office at 160 Congress Street * * * the superintendent of the Waltham office would forward it by mail the day it was received to the Boston office, 160 Congress Street.’ On November 17, 1935, there was some talk between the plaintiff and the insured with reference to the premium due on that day. It was not paid, and on the next day, after another conversation with the insured, the plaintiff, at his request, telephoned to one Joseph White who had been in charge of the Waltham office until April 17, 1934, and who ‘thereafter in 1935 was connected with the Stuart Street office.’ White had sold the policy in question to the insured. The plaintiff talked with White over the telephone, and, in consequence of the conversation had between them, she wrote a letter at the dictation of the insured, which he signed. The letter was as follows: ‘Please put my policy’-the policy number-‘on extended insurance as provided in Clause C of my policy.’ The letter was addressed to ‘The Boston Mutual Life Insurance Company of Boston, Care of Mr. White, 680 Main Street, Waltham, Mass.’ During the morning of November 18 the plaintiff delivered the letter, postage prepaid, to the postman on whose route she lived.

The insured died in December, 1935. A proof of claim and proofs of death were filed with the defendant, but it made no payment on account of the policy. In its answer the defendant admits that ‘there is due to the plaintiff the sum of $164.20, being paid up value of the policy’ and states that this amount ‘has been tendered to the plaintiff and refused.'

In accordance with G.L. (Ter.Ed.) c. 175, § 144, it is provided in the policy that after the payment of three full annual premiums the holder of the policy shall be entitled ‘by a writing filed at the home office of said [defendant] Company’ within thirty days after a default in the payment of a subsequent premium to elect one of certain options, which include one of ‘extended insurance.’ An examination of the tables contained in the policy discloses that the shortest time fixed for ‘extended insurance’ is one year and seventy-one days. In the present case if the election to take extended insurance was properly exercised by the insured, the period of extension would include the day of his death.

There are a number of references in the policy to the ‘home office’ of the defendant, but no more definite reference is made to its location except that to be found in the heading of the policy...