Markey v. Mutual Ben. Life Ins. Co.

• Decision Date: 03 September 1875
• Citation: 118 Mass. 178
• Parties: Eliza J. Markey v. Mutual Benefit Life Insurance Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 178

Eliza J. Markey v. Mutual Benefit Life Insurance Company

Supreme Court of Massachusetts

September 3, 1875

Argued January 6, 1875; November 9, 1874 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Essex. Contract. The declaration originally contained one count. Those entitled second, third and fourth were added at different times by amendment. The first count alleged that the defendant made a policy of insurance upon the life of her late husband, James W. Hoyt, in the sum of $ 3000, payable on his death to the plaintiff; that Hoyt afterwards died, and the defendant owed the plaintiff the amount of said policy.

The second count alleged that the plaintiff and her late husband made an application to the defendant for a contract of insurance and a policy upon the life of said Hoyt, in the sum of $ 3000, payable on his death to the plaintiff, upon the payment to the defendant of the annual premium; that the defendant accepted and approved said application, and agreed to insure the life of said Hoyt, and to issue a policy to the plaintiff in the usual form; that the defendant executed a policy in the usual form, containing the contract and stipulations aforesaid, and delivered the same to its agents; that the agents informed the plaintiff and her husband that the contract was made and the policy executed, and the plaintiff and her husband accepted said contract and policy, and offered and tendered to the defendant's agents the premium and policy fee upon said contract and policy; that after said offer and tender said Hoyt died, and the plaintiff gave due notice of his death, and made the proof of death required, and demanded possession of the policy and the amount insured; that the defendant refused to give her said policy and to pay the amount insured.

The third count alleged the application, as set forth in the second count, the acceptance and approval thereof by the defendant, the issuing of a policy on September 21, 1865, and the delivery thereof to the defendant's agents; that on or about November 5, 1865, the defendant sent the policy to the plaintiff and her husband, and offered the same to them, and they agreed to receive the policy and did receive it, and the policy was then and there delivered to the plaintiff and her husband, and the defendant agreed to carry the policy to one Banks and get the money therefor; that if the defendant had carried the policy to said Banks, as agreed, the money would have been paid; that the amount of the premium was tendered on or about November 7, and a demand made for the policy; that the said Hoyt died on November 23, 1865, of which the defendant had due notice according to the requirements of the contract and policy.

The fourth count alleged that said Hoyt made an application in behalf of the plaintiff to the defendant to insure his life in the sum of $ 3000, payable to the plaintiff upon the death of said Hoyt; that the defendant accepted the application and agreed to insure and thereby did insure the life of said Hoyt, and agreed to pay the plaintiff the sum of $ 3000 upon the death of said Hoyt; that Hoyt died on November 23, 1865, of which death the defendant had notice, and the defendant owed the plaintiff the sum of $ 3000 and interest thereon.

The answer to the first count denied insuring the life of Hoyt, and that any policy made by the defendant was in force when Hoyt died. It also denied owing the plaintiff $ 3000 or any sum of money.

The answer to the second count denied that the defendant agreed to insure the life of Hoyt, and that the plaintiff was entitled to receive a policy as alleged. It averred that Hoyt made an application for an insurance upon his life in the sum of $ 3000; that the defendant made a policy, which was to be delivered to Hoyt upon his paying the premium therefor; that Hoyt never offered to pay said premium and receive the policy until on or about November 6, 1865, when he was dangerously sick of the disease of which he died, and that the defendant then refused to receive said premium and deliver said policy by reason of Hoyt's sickness; that by the terms of the by-laws and rules and regulations, no policy could be delivered, nor any insurance made, unless the applicant should pay the premium therefor, and that no policy would be delivered to a person who was sick at the time of the application for delivery, unless he had paid the premium at the time of application for insurance; that Hoyt did not pay the premium upon application for said policy, and that he was sick when he offered to pay the same; that, before Hoyt offered to receive the policy and pay the premium, he refused to receive the policy or to pay the premium; and the defendant denied that it owed the plaintiff anything.

The answer to the third count denied that the defendant agreed to insure the life of Hoyt; that the plaintiff was entitled to receive a policy; that it had accepted the application and made a policy of insurance. The answer further denied all the other allegations of the declaration, and averred that, if at any time a policy was offered to the plaintiff or her husband while he was sick, it was without authority from the defendant and contrary to its by-laws, rules and regulations, and such offer, if made, was void and of no effect.

The answer to the fourth count averred that the defendant did not agree and did not insure the life of Hoyt as alleged; and denied the allegations of the declaration.

After the opinion reported in 103 Mass. 78, the case was tried again in the Superior Court, before Lord, J., and a verdict returned for the plaintiff. The defendant alleged exceptions, which were disallowed by the presiding judge. The bill of exceptions stated the evidence at length by questions and answers, and the charge of the judge in full. So much of it as appears to be material to the questions passed upon by the court was as follows:

The plaintiff put in evidence the application for insurance upon the life of James W. Hoyt, and also the policy of insurance written by the defendant company upon his life, (copies of which were made part of the bill of exceptions,) both papers being produced by the defendant upon notice by the plaintiff.

The application, dated September 21, 1865, and signed Eliza J. Hoyt, by James W. Hoyt, stated that Eliza J. Hoyt was desirous of effecting insurance in the defendant company on the life of James W. Hoyt. The answers of the agent, which were on the same paper as the application, were signed "Ch. F. Wells, sub agt. for W. H. S. Jordan." The policy, which bore the same date as the application, recited as the consideration the sum of $ 59.40 paid by Mrs. Eliza J. Hoyt, and the annual premium of the same amount to be paid on September 21 in every year during the continuance of the policy.

The presiding judge asked the defendant's counsel whether it was contended that the application or policy contained any clause providing that the policy should not be delivered till the premium was paid; and it was conceded that there was no such clause, nor anything on the subject, except the recital of payment of the premium. He also inquired whether there was anything to show that the applicant for insurance or the plaintiff had notice of any such limitation as to the authority to deliver policies without payment of premium, and it was conceded that there was not.

The plaintiff was then called as a witness, and testified as follows: "My late husband, James W. Hoyt, died at Ballardvale on November 23, 1865. I knew before his death that he had made an application to the defendant company for a policy. He was taken sick very late in October or very early in November. He was a file-hardener, in the employ of the Whipple File Company at Ballardvale, where we lived. I should think the application for insurance was a month or six weeks before he was taken sick. After his death, I collected his wages from the Whipple File Company. Mr. Wells came to see us, not a very great while after my husband was taken sick; I cannot state the exact time, perhaps a week. He came in the morning between nine and eleven, I cannot state the exact time. My husband was at home, on the bed. Mr. Wells brought with him the policy, and passed it to my husband, saying that he had brought out to him his policy. My husband said he was glad of it; he had been expecting it for some days past. My husband then took the policy and read it over. I stood by the bed, and he handed it to me, saying, 'Eliza, there is your policy.' And I took the policy, glanced it over, and laid it upon the table." The examination of this witness then proceeded as follows:

"Qu. At that time, did you understand that that policy was delivered to you to keep? Ans. Yes, sir. [Objected to, but admitted, and exception taken.]

"Qu. How long did Mr. Wells stay at your house after that? Ans. A very few minutes after.

"Qu. What did your husband say to him? Ans. My husband told him he was not well enough to go out and get the money to pay for the policy, but he had made an arrangement with Mr. Banks over at the shop, to get the money and pay it to him.

"Qu. What did Mr. Wells say? Ans. He said he would go directly to Mr. Banks and get the money for the policy.

"Qu. How long did you say he remained after that? Ans. But a few minutes.

"Qu. When he went out, what was done? Ans. When he started to go out, I took the policy from the table and passed it to him, saying, 'If you are going to Mr. Banks for the money, you may need the policy,' and he took the policy.

"Qu. When did you, or your husband, first learn that the policy had...