Starr v. Mutual Life Ins. Co. of New York

• Decision Date: 28 December 1905
• Citation: 83 P. 116,41 Wash. 228
• Parties: STARR v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Washington Supreme Court

83 P. 116

41 Wash. 228

STARR v. MUTUAL LIFE INS. CO. OF NEW YORK.

Supreme Court of Washington

December 28, 1905

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

Action by Amelia Starr against the Mutual Life Insurance Company of New York. From a judgment for defendant, plaintiff appeals. Reversed.

Hartson & Holloway, Bedford Brown, and J. D. Campbell, for appellant.

Hughes, McMicken, Dovell & Ramsey, for respondent.

RUDKIN, J.

On November 30, 1903, at Spokane, Wash., Martin Luther Starr made application to the defendant insurance company, through one of its soliciting agents, for insurance on his life in the sum of $2,000. The application, which was on a printed form furnished by the company, contained the following provisions: 'This application is the basis and part of a proposed contract for insurance which shall not take effect until the first premium shall have been paid during my continuance in good health, and the policy shall have been signed by the secretary of the company and issued.' Also 'I have paid _____ to the subscribing soliciting agent who has furnished me with a binding receipt therefor, signed by the secretary of the company, making the insurance in force from this date, provided this application shall be approved and the policy duly signed by the secretary at the head office of the company and issued.' On the same day Starr was examined by a physician designated by the insurance company, and thereupon the soliciting agent issued to him the following receipt: 'Nov. 30, 1903. Received of Martin Luther Starr, five and no-100 dollars to apply on life policy for $2,000.00 in Mutual Life Ins. Co. of New York. Also his note to be paid to said Company Jan. 30th, 1903, for $76.22 bal. on first half of semiannual premium. Policy to take effect from date. J. W. Pantall, for Mutual Life Ins. Co. of N. Y.' The application was forwarded to the head office of the company in New York, through its Seattle office, and on the afternoon of December 8, 1903, the application was approved and a policy issued. The policy was returned to the Seattle office for delivery to the insured. Starr died on the morning of December 8th, before the approval of the application, and the issuance of the policy of insurance from injuries received two days before, and the agent of the defendant company refused to deliver the policy for that reason. This action was prosecuted by Starr's widow to recover the amount of the insurance. The court below held on the foregoing facts that there was no contract of insurance, and granted a nonsuit. From the judgment of nonsuit, this appeal is prosecuted.

The appellant contends that the above receipt constituted a preliminary contract of insurance, which remained in force until the application was either approved or rejected at the home office of the company. The respondent, on the other hand, contends that the receipt and the application must be construed together, that the approval of the company was a prerequisite to the consummation of the contract of insurance, and that the approval of the application and the issuance of the policy after the death of the insured, and without knowledge thereof, was of no effect. With this latter contention we fully agree. By the death of Starr the subject-matter of the contract of insurance ceased to exist and at that moment there was a contract of insurance or there was none. The approval or rejection of the application after that time would be ineffectual for any purpose. The object of the second provision of the application, above quoted, is not entirely clear, especially from the standpoint of the insured. If there was to be no contract of insurance in any event until the...