Richards v. Travelers Insurance Co.

McFarland, J. — This is an action upon an accident insurance policy. By the terms of the policy, the insured — Philip Bichards — was to have a sum of money paid him weekly in case of injury to him by accident, and his estate was to be paid five thousand dollars in case of his death from such injury. During the life of the policy said Bichards was killed. The jury returned a verdict in favor of plaintiffs, executors of said Bichards, deceased, for five thousand dollars, and defendant appeals from the judgment, and from an order denying a new trial.

1. We think that the complaint is sufficient. There was no formal demurrer, but defendant objected to a jury being impaneled, and to the introduction of an evidence, upon the ground that “the complaint does not state facts sufficient to constitute a cause of action.” The first objection is, that the complaint does not state the particular circumstances under which the death of the insured occurred; that is, whether it was caused by lightning, drowning, railroad collision, etc. But the complaint avers that at a named date the deceased “ sustained bodily injuries effected through external, violent, and accidental means, and that on, to wit, the twenty-seventh day of May, 1887, the said Philip Bichards died at Nevada City, Nevada County, California, and that the said death was occasioned by said injuries alone.” This language, which avers a state of facts expressly provided against by the covenants of the policy, is sufficient as against an attack which is no more specific than a general demurrer.

The other objection to the complaint is, that it does not aver notice and proofs of death as required by the [174]policy. But it is averred that “ said Philip Richards and said plaintiffs have duly complied with all the terms and conditions of said policy and renewal by them, or either of them, to be kept or performed”; and this was generally a sufficient pleading of conditions precedent. (Code Civ. Proc., sec. 457; Blasingame v. Home Ins. Co., 75 Cal. 633.) It has been held in some cases that where money covered by an insurance policy is not to be paid until a certain time after the loss, or after notice and proofs of the same, there should be a special averment that such time had elapsed. In the case at bar there was a provision in the policy that the money should be paid “ within ninety days ” after proof that the insured received injuries which alone “occasioned his death within ninety days from the happening thereof,” and with respect to this matter, it is alleged in the complaint that “ more than ninety days had elapsed prior to the commencement of this suit, after sufficient proof that the insured, at a time within the continuance of the said policy, had sustained bodily injuries effected through external, violent, and accidental means, within the intent and meaning of said policy, that such injuries alone had accasioned death within ninety days from the happening of such injuries.” This averment, together with the general averment above noticed, makes the complaint entirely sufficient as against a general demurrer.