Opinion
Department Two
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
COUNSEL
I. B. L. Brandt, for Appellant.
Whittemore & Sears, for Respondent.
JUDGES: Temple, C. Fitzgerald, C., and Vanclief, C., concurred.
OPINION
TEMPLE, Judge
[27 P. 159] Appeal from judgment and order denying defendant a new trial.
This action is upon a life insurance policy issued by the defendant, which is a mutual insurance society upon the assessment plan. In this case the policy or certificate declares that the society accepts J. R. Deardorff "as a full-rate member of said association, subject to all the requirements and entitled to all the benefits thereof. The principal sum, not exceeding five thousand dollars, realized upon an assessment in accordance with the by-laws, to be paid Mary E. Deardorff (wife), if surviving,. .. . within sixty days after satisfactory proof that said member at any time," etc. "Said association shall, upon the surrender of this certificate, pay the amount realized from one said assessment upon all the members, at the time of the accident, of said association, to the member above named, not, however, exceeding the sum of five thousand dollars," etc.
The complaint contains no allegation of an assessment or of a demand that an assessment be made, and a refusal by the corporation, nor any averment as to the number of members, or what an assessment would amount to under the by-laws referred to, nor are there any data given in any form by which the court can arrive at such conclusion, nor does it appear that an assessment has been collected, or that the corporation has any money. There is, in fact, a total omission of any allegation upon the subject.
The complaint is not, however, defective in this respect, for it avers an absolute insurance in the sum of five thousand dollars.
The true nature of the policy is set up in the answer, in which the certificate or policy of insurance is set out at large, and its genuineness is admitted.
Nor was there any attempt at the trial to prove an assessment or a demand that one be made, or a refusal, or the number of members, or to what one assessment would amount.
It is manifest that the judgment for the plaintiff must be reversed. The general rules of pleading apply to cases of this character, and the plaintiff, as in other cases, must show by proper averment his true cause of action and the relief to which he is entitled.
Many other points are raised by the appellant, but there is no appearance here on the part of respondent, and the questions may not arise upon another trial.
We advise that the judgment and order be reversed, with leave to plaintiff to amend her complaint if she shall be so advised.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are reversed, with leave to plaintiff to amend her complaint if she shall be so advised.