Stray v. Western States Life Ins. Co.

• Citation: 163 Wash. 329,300 P. 1046
• Decision Date: 03 July 1931
• Docket Number: 23104.
• Parties: STRAY v. WESTERN STATES LIFE INS. CO.
• Court: United States State Supreme Court of Washington

300 P. 1046

163 Wash. 329

STRAY v. WESTERN STATES LIFE INS. CO.

No. 23104.

Supreme Court of Washington

July 3, 1931

Department 1.

Appeal from Superior Court, Pierce County; E. M. Card, Judge.

Action by Vuke Stray against the Western States Life Insurance Company. Judgment of dismissal, and plaintiff appeals.

Affirmed.

P. L Pendleton and W. G. Palmer, both of Tacoma, for appellant.

Hayden Langhorne & Metzger, of Tacoma, for respondent.

HOLCOMB, J.

This action was instituted by appellant to recover the amount of a policy of insurance upon the life of Robert Perlain, brother of appellant.

The complaint alleges that on June ___, 1928, Robert Perlain, at the solicitation of a certain agent of respondent, applied for insurance on his life in the sum of $1,000, paid the required premium therefor, and the agent represented that a policy of life insurance would be issued to Perlain by respondent insuring his life in the sum of $1,000; the policy to name appellant as beneficiary to whom the $1,000 would be paid in the event of the death of the insured during the life of the policy. It is alleged that respondent carelessly and negligently failed to act upon the application of Perlain carelessly and negligently failed to deliver its policy of insurance in accordance with the application, and wrongfully and negligently failed either to issue to him the policy of insurance applied for or to reject the application therefor and give Perlain notice of such rejection so that he might have procured other insurance. It is averred that Perlain did everything on his part required by respondent for the purpose of being fully insured in the sum of $1,000 to be paid to appellant as his benficiary in case of death during the life of the policy. It is further alleged that immediately after the consummation of the agreement for the issuance of such life insurance policy, Perlain went to a logging camp where within one year from the date of the application, he met with an accident which resulted in his death. It is then alleged that by reason of the negligence and carelessness of respondent by reason of the foregoing allegations, appellant is damaged in the sum of $1,000.

To the complaint respondent demurred upon the grounds that appellant had no legal capacity to sue; that there is a defect of party plaintiff; that several causes of action have been improperly united; that the complaint does not state facts sufficient to constitute a cause of action.

The trial court sustained the demurrer upon which appellant filed its election to stand upon the complaint and judgment was thereupon entered dismissing the action.

As stated by appellant, the only question before the court is Is appellant the proper party to bring this action?

She relies particularly upon Rem. Comp. Stat. § 179, which requires that an action shall be brought by the real party in interest.

There is no question but that appellant would be the real party in interest had the application for the insurance been accepted by respondent whether a policy had been delivered or not. The action would then be one ex contractu. The application not being alleged to have been accepted, but merely that respondent was negligent in not passing upon the application and neither accepting at nor rejecting it so that the applicant could procure other insurance, if desired, the action must necessarily be in tort although founded upon the contract. In such case the statute authorizing the maintenance of actions by the real party in interest is not applicable for the reason that this presents a question of the survival of actions. Under the statute of survival (Rem. Comp. Stat. § 967), such actions survive to the personal representative only. Dyer v. Missouri State...