Markey v. Mutual Benefit Life Insurance

Soule, J. The evidence at the trial in the court below was identical with that given at a former trial, and reported in Markey v. Mutual Benefit Ins. Co. 118 Mass. 178. It was there decided that the whole evidence was insufficient to warrant the jury in finding that the policy had been delivered so as to constitute a binding contract; and that there was no evidence whatever that the defendant intended or was understood by the [160] plaintiff or her husband to intend to make a contract of insurance in any other form. A re-examination of the case confirms us in the opinion there expressed, and we do not understand that the plaintiff contends that that decision requires any modification. The judge who presided at the trial ruled, however, that the plaintiff had no cause of action, and that no amendment to the declaration would avail her, and that the jury would not be authorized to find a verdict for her under any form of pleadings. In support of her exception to this ruling, the plaintiff insists that there is evidence in the case which would warrant a jury in finding a contract between the parties, which bound the defendant to make and deliver to her a policy on the life of her husband. We are of opinion that this position is not tenable. The evidence, in substance, is, that an application for insurance was made to the defendant, which it found satisfactory; that it wrote the policy, based on the application, and offered it to the plaintiff and her husband for inspection; that they did not pay the premium called for by its terms, and it was not delivered to either of them. Before this offer of the policy was made, the defendant did not communicate in any way with the plaintiff or her husband, after receiving the application. No contract of any kind, therefore, had been made between the parties; and, as has been already decided, the evidence did not show that any contract was made at the time of offering the policy. The question now presented by the plaintiff differs in form from either of the questions presented when the case was last before us, but the decision then given, as to the result of the evidence, involves the point now made. Exceptions overruled.