Olyska v. Virginia Life Ins. ( 1925 )

SULLIVAN, J.

• Husband of Mary Olyska, on December 1, 1922, signed applications for issuance of life insurance policies with the Life Insurance Company of Virginia. The following clause appeared in said applications:

“I agree-----that no obligation shall exist against said company under said policy -----unless such policy is delivered to me, and unless upon its date and delivery to me I shall be alive and in sound health.” The husband died on December 28, 1922, before issuance of the .policies.

The policies were issued some time in January, subsequent to the death of the applicant, and the agent in attempting to deliver them, learned of the death of applicant, and refused to deliver same.

The widow sued to recover on said policies in the Cuyahoga Common Pleas but the court ruled for the Company. Error was prosecuted and the Court of Appeals held:

1. In view of the agreement that there shall be no liability on part of the company in event policies are not delivered to applicant during his life, there never was actual delivery of the contract of insurance.

Attorneys — P. J. Kiecik for Olyska; Dustin, McKeehan, Merrick, Arter & Stewart for Company; all of Cleveland.

2. In as much as liability of Company did not commence until delivery of contract of insurance, and as there was no delivery, company was not liable.

3. Policies not being issued until after death of applicant, contract of insurance was never-in force.

Judgment affirmed.