Markey v. Mutual Ben. Life Ins. Co.
| Decision Date | 11 January 1879 |
| Citation | 126 Mass. 158 |
| Parties | Eliza J. Markey v. Mutual Benefit Life Insurance Company |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 8, 1878
Essex. Contract on a policy of insurance of the life of James W Hoyt, the plaintiff's former husband, in the sum of $ 3000, payable on his death to the plaintiff; and on an agreement to insure. After the former decision, reported 118 Mass. 178, the case was tried in the Superior Court, before Colburn, J., upon the same pleadings, and the plaintiff offered the same evidence that she presented at the former trial, which is reported 118 Mass. 181-185, and the substance of which is stated in the opinion. The judge ruled that the plaintiff could not maintain the action; that no amendment of the declaration would avail the plaintiff; and that under no form of pleadings would the jury be authorized to return a verdict for her; ordered a verdict for the defendant; and the plaintiff alleged exceptions.
Exceptions overruled.
D Saunders & C. G. Saunders, for the plaintiff. There was evidence proper to be submitted to the jury, of a contract entered into by the plaintiff and the defendant, which bound the defendant to make and deliver to her a policy upon the life of her husband. The plaintiff signed a written application for a contract of insurance, by the terms of which she was to pay the company a premium annually, the application setting forth the amount of the premium to be paid by a person of Hoyt's age, and forwarded it to the defendant for its acceptance. The defendant thereupon accepted her proposal, indorsed in writing such acceptance and the details of it on the application, and wrote, signed and sealed a policy for the agreed amount. The proposal and the acceptance ascertained the subject, the commencement and duration of the risk, the parties, the interest of the assured and the premium. Notice was given to her that her proposal was accepted, and the policy was sent to be delivered to her. The defendant's agent, Wells, said to Hoyt, that he had brought out to him his policy, recognizing his right to it, and the plaintiff assented to it; having so assented to the terms of the contract made upon her application, she tendered the premium within a reasonable time and demanded the policy. There was therefore a complete aggregation mentium; a proposition on one side, acceptance of it on the other, and notice given of the acceptance. There was also a good and valuable consideration for this contract the plaintiff promised to pay for the policy the stated premium and to pay it annually. The action could therefore be maintained. Union Ins. Co. v. Commercial Ins. Co. 2 Curtis 524, and 19 How. 318. Tayloe v. Merchants' Ins. Co. 9 How. 390. Perkins v. Washington Ins. Co. 4 Cowen 645. Lightbody v. North American Ins. Co. 23 Wend. 18, 25. Hamilton v. Lycoming Ins. Co. 5 Penn. St. 339. Carpenter v. Mutual Ins. Co., 4 Sandf. 408. Kentucky Ins. Co. v. Jenks, 5 Ind. 96. Sheldon v. Connecticut Ins. Co. 25 Conn. 207. Ide v. Phoenix Ins. Co. 2 Bissell 333. Davenport v. Peoria Ins. Co. 17 Iowa 276. Keim v. Home Ins. Co. 42 Misso. 38. Kohne v. Ins. Co. of North America, 1 Wash. C. C. 93. First Baptist Church v. Brooklyn Ins. Co. 19 N.Y. 305. Pratt v. Hudson River Railroad, 21 N.Y. 305. Post v. Aetna Ins. Co. 43 Barb. 351, 362.
D. Foster, for the defendant, was not called upon.
OPINION
The evidence at the trial in the court below was identical with that...
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