VIII. GENERAL CONCLUSIONS

Success in practice, as may be observed in the facts considered, is a complex result involving many interacting factors. Some of these factors, such as inborn ability or the fortune of the times in which we live, are beyond the control of the individual by his own efforts to change and improve. Other factors, involving matters of development through training, may be very materially affected for good or ill by efforts of the individual himself. The individual who is seeking preparation for the practice of law should therefore so arrange his course of preparation as to secure the development which will give him the greatest possible proficiency in practice. Only by so doing does he lay the securest foundation for his own personal achievement of success.

The first general conclusion to be drawn is, therefore, that on the face of the facts presented the most effective course of preparation for the practice of law consists of a completed college education, a law-school course, and an office apprenticeship. Age and prior occupation are of but secondary importance. In the course thus indicated by far the most effective detail in preparation is the doing well of the task in hand. As shown by figures upon each of these features, lack of a college education is a disadvantage but not insuperable, lack of law-school education is a disadvantage but not insuperable, and lack of office apprenticeship is a disadvantage but not insuperable. The disadvantage which is much more nearly insuperable than any other of these is that of poor work in preparation. The opportunity for success is thus open to every man through the doing of the highest possible quality of work throughout his course, carrying his programme through as much of the college, law-school, and office course as his circumstances permit.

May not a second general conclusion also be drawn from these figures, that legislatures ought to raise the standard of education, general and professional, for admission to the bar? Incompetent lawyers, learning at the expense of their unfortunate clients, are no more to be desired than incompetent doctors, learning from their mistakes in killing their patients. More than twice as many men are admitted to the bar, the figures indicate, as ever actively practice law. Manifestly, then, the incompetent lawyer is not needed in order to take care of legitimate litigation. The ill-trained applicants, as has

been demonstrated, furnish the largest proportion of incompetent lawyers. By requiring better training for admission to the bar an appreciably higher degree of proficiency may be obtained, making the services of the legal profession much more useful to their clients, to the courts, and to the community as a whole.

UNIVERSITY OF NORTH Dakota.

Lauriz Vold.

THE DELIVERY OF A LIFE-INSURANCE POLICY

WHERE

WHERE a legal transaction is embodied in a written instrument the delivery of that instrument, by one party to the other has nearly always played an important, if not an indispensable rôle in the consummation of the legal transaction. The reasons are not far to seek. Not only does delivery of the writing supply the "deliveree" with the most satisfactory evidence of his right; it also marks the final stage in the series of inchoate acts of reflection, drafting, revision, etc., and thus manifests with certainty the final utterance of the deliveror.1 Thus, the early common law made delivery of a sealed instrument indispensable, and delivery of a negotiable instrument is still a normal requirement. So, too, delivery of a formal written policy has been the customary mode of consummating an insurance contract. The demand for certainty, however, with its resulting formalism, must often yield to the desire for speed and flexibility; and thus the early rule as to delivery of a deed has been gradually whittled away 2- the whittlings being often concealed under some such subtle verbiage as "constructive delivery." It was not to be expected that, in such a highly commercialized transaction as life insurance, the formality would maintain a hold which had been broken in the land law. Yet the demand for certainty does not yield without a struggle. Litigation involving questions as to the legal significance of delivery of a life-insurance policy has frequently come to appellate courts, who have more than once left the principles in doubt.

Before taking up these decisions, it seems well to indicate the steps of negotiation, reflection, drafting, etc., which take place in the usual life-insurance transaction: A soliciting agent of the insurance company, who has no power to conclude a contract of insurance, induces an individual to apply to the company for a

1 WIGMORE ON EVIDENCE, § 2408.

2 Ibid.

It is this which distinguishes the life-insurance cases, for our purposes, from fire insurance, in which it is customary to give the local agent power to approve risks and conclude contracts.

policy. The individual signs a formal "application," prepared by filling in a printed blank form provided by the insurance company, and prepared under the direction of its attorneys; the applicant has little opportunity to make changes in it. At about the same time, the applicant undergoes a physical examination by a physician appointed by the company, and pays the first premium to the solicitor, who gives him a receipt therefor upon a printed form provided by the company. The application and medical report are then sent to the home office of the company, where they are gone over carefully by the medical director and other officials having plenary powers. If they approve, the policy is prepared upon a printed form, and is signed and sealed by the highest executive officials, e. g., the president and secretary. The policy is then taken by clerks and mailed to the local agent. The local agent hands the policy over to the applicant. The applicant may signify that the policy is acceptable to him. In some instances this routine is varied in that the application is sent by the local agent to a district agent under whom he works; and the policy is sent from the home office to the district agent, who transmits it to the soliciting (or local) agent.

The process is highly mechanical and systematic. The application mounts through a hierarchy of officials, and by the same route the policy comes back. Communication all the way along the line is, with rare exceptions, in writing, and a systematic record of each step is preserved. The volume of business done would in itself require a highly organized mechanism, aside from the distance.

In legal terms, this means that the applicant makes an offer, his application, of the premium money for the company's promise to insure him. More precisely, since the money paid to the local agent becomes the company's money, the applicant offers to extinguish the company's obligation (evidenced by the receipt) to repay this sum, in exchange for the company's insurance promise. The contract formed by the acceptance of this offer is a unilateral one, even if the premium is paid in the shape of a negotiable note.5 In determining whether and when the company is legally bound,

Cases in which the first premium has not been paid, as well as cases in which the applicant makes false statements as to his health, will be excluded from this discussion.

• HARRIMAN, CONTRACTS, 11, 12 (1896). But see Busher v. N. Y. L. Ins. Co. 72 N. H. 551, 58 Atl. 41 (1904), where such a transaction is called bilateral.

one is not troubled by the perplexing parallelism between contractual and quasi-contractual liability, for insurance is an aleatory, as distinguished from a commutative, contract, and the company's obligation as insurer is never based upon unjust enrichment." The company's obligation is based upon contract; the policy is nothing if not a promise.8

The delivery of the policy, or the act of handing the policy to the applicant for it is in this sense that the term will be used may have legal significance in three ways: First, it may be a mere evidential fact; secondly, it may be an essential fact, a means of communication; thirdly, it may be a condition precedent to the commencement of the risk.

I

It is all but universally conceded by American courts that a contract of life insurance may be formed before the contemplated delivery of the policy. That is, it may be consummated by words or informal writings, and the policy is treated as evidence, merely, of the company's promise. This would hardly be true if, as Professor Langdell suggests, the policy is a mercantile specialty.10 In truth, there seems to be no recent judicial support for this view." Occasionally one finds the delivery of a policy compared to the delivery of a deed,12 but it is merely argument by analogy. Thus, the contract of insurance may be completed by letters or by conversations and may take effect before the policy is delivered,13 or even before the

12

• VANCE, INSURANCE, 46.

'The perplexity thus escaped will appear by comparing LANGDELL, SUMMARY OF CONTRACTS, § 17, with Ashley, "Formation of Contract Inter Absentes," 2 COL. L. REV. 1, 5.

A possible qualification of this statement is noticed infra, p. 216.

Based upon Austin's classification of titular facts. AUSTIN, JURISPRUDENCE, 5 ed., Campbell editor, 1885, LECTURE LVI, 887, 892; 4 ed. (1873), 919, 924.

10 LANGDELL, SUMMARY OF CONTRACTS, 63.

11 See "Letters of Credit," Omer F. Hershey, 32 HARV. L. REV. I, 10.

12 Heiman v. Phoenix Mut. L. Ins. Co., 17 Minn. 153 (1871); American Trust Co. v. L. Ins. Co. of Virginia, 173 N. C. 558, 92 S. E. 706 (1917); Mass. Ben. Life Ass'n v. Sibley, 158 Ill. 411, 42 N. E. 137 (1895).

13 Kimbro v. N. Y. L. Ins. Co., 134 Iowa, 84, 108 N. W. 1025 (1906); Sheldon v. Connecticut Mutual L. Ins. Co., 25 Conn. 207 (1856); Union Central L. Ins. Co. v. Pauley, 8 Ind. App. 85, 35 N. E. 190 (1893) (semble); De Camp v. New Jersey Mut. L. Ins. Co., Fed. Cas. No. 3, 719, 3 Ins. L. J. 89 (U. S. Circ. Ct., 1873); N. Y. L. Ins. Co. .. McIntosh, 41 So. 381 (Miss. 1906) (for earlier appeal, see same case, 86 Miss. 236,