*1 Co. Agalianos 1923.] v. American Central By developed by report referee. reason of the according theory adopted, erroneous thus to consideration, tried, notes valuable ease for a received been, by any way fraud, not in tainted with have judgment, value, to with- reduced less than half of their face any whereby may he finding out of the facts reduction justified. judgment hereby reversed, directed it is presented
a with relation new trial be had of issues or omis- by respondent reason errors credits claimed whereby affairs, partnership sions settlement of said respondent re- of said notes should be claims the amount findings having covering said Thereupon, made duced. been judgment may issues, new be entered.
Curtis, J., concurred. Dissenting. my mind, I dissent. To HOUSER, J., stiрulation is herein made constitutes to which reference rights arising complete out of the “account waiver accounting fully novo. entire de an stated” and authorizes court, supreme petition A heard in to have the cause appeal, judgment in was denied district court after July 1923. supreme court on May 29, Appellate No. 2580. Third [Civ. AGALIANOS, Respondent, v. AMERICAN THEODORE Appel- (a Corporation), INSURANCE CO. CENTRAL lant. [1] Fire action to Id.—Sufficiency purposes,” tion its contents effect building including to recover Insurance—Occupancy recover on a “only was used complaint day while fire Complaint—Waiver date must insurance occupied for mercantile mercantile of fire the issuance of the op Building—Pleading.—In destroyed allege policy covering a insurance, that at and restaurant fire Objections.—In an “plaintiff allegation and restaurant building and purposes. down an ac fire tie an Ins. , one-story property frame including
owner of . . occupied purposes” suffi- thereon and restaurant mercantile objection cient, timely absence of demurrer or other pleading, show fire the the time of the occupied purposes. and used for mercantile restaurant [3] recover on way Id.—-Payment policy prior notice served agent prior to determining certain sum was due as canceled, -paid of affirmative a policy not that time of evidence Premium—Evidence—Finding.—-In *2 op canceled. a of fire insurance and which receipt defensе, specified premium premium fire, of such sufficient to pleaded number of such paid and that unless such notice the cancellation of defense by plaintiff justify days and to the effect being policy finding to defendant’s based trial an action would premium that court that policy be to a a Contingent upon Nonpayment op [4] Id.—Cancellation Premium— op provision a fire in a Construction Notice.-—Notwithstanding policy giving right insurance the insurer either or insured the policy any time, any specific to cancel at giving without any therefor, contingent reason a in insurer to the premium sured that certain sum due as not paid has been premium paid said days “unless on or before five notice, policy the date service of . . said . will stand can nonpayment premium celed for notice, without further void, liability thereafter be null and and no will exist there under,” policy will not effect a cancellation of in where the pays specified sured such within the paid or has prior receipt the same such notice. [5] Evidence court had tiff’s for the same given able to cannot be defendant were objections to certain give any questions previously propounded — held allowed Sustaining testimony. erroneous, more questions rulings op satisfactory where it Objections — questions the witness would not have been the trial answers thereto than asked of a apparent to him and which called Absence court sustaining plain witness for the op Error. even if — had It [6] ination is sion of which Id.—Incompetent not no allowable as objection Testimony—Cross-examination.—Cross-exam made. incompetent testimony to the admis [7] Id. foundation cross-examine — Impeachment for his Ms own witness for impeachment op Own Witness so — impeach Foundation. purpose him, — laying if he One may can, 4. What notice of cancellation of fire insurance becomes A, effective, notes, 19-180, (N. 12-0; S.) Ann. Cas. 39 L. R. 829. Ins. May, 1923.] if he is taken but be, him as a witness producing the witness has calling tains no port Id.—Sufficiency ease substantial but subject sufficiency of such him to the witness-stand surprise specification finding. to review on party. such and must of the evidence to given surprise by testimony is Evidence—Appeal—Specification will appeal where the bill of be founded open insufficiency prejudicial or at testimony reason good support variance with examining way given the evidence to particular such detrimental him, that by such what the exceptions con believe, before a course the fact finding is it would witness; Error. party must sup Insurance—Termination—Sufficiency of Notice.—Where [9] Fire policy gives right insurance the insurer to cancel fire specific giving any any there time, without reason for, a that a certain sum due has not written notice paid premium be on or before been and that “unless said days notice, . five from the date service of this . . nonpayment canceled further will stand without notice, void, liability and thereafter be null and no will exist ipso thereunder,” operate, facto, will policy, to cancel the if the *3 pay (On specified. insured fails the time opinion.) modification of judgment APPEAL Superior from a of the of San Court Joaquin County. Judge. Plummer, J. A. Affirmed. opinion, are
The facts stated of the court. Coogan & O’Connor and Arthur Levinsky Appel- L. lant.
Stanley Arndt, George M. A. Brown N. and McNoble F. Respondent. The plaintiff HART, J. sued to recover of on a issued the defendant and insurance, plaintiff, covering a certain and the thereof, contents situated Joaquin County. in Lodi, San tried court, parties
The action was thereto expressly having by jury. plaintiff waived a trial The judgment $1,800, the sum awarded which is the amount provided policy. risk A motion for a new made the defendant denied trial was the court. v. Ins. Co. The prosecutes appeal judgment from the upon a bill exceptions. important allegations сomplaint fol- are as
low®:
“II. day “That on April, 1921, County the 15th Lodi, at San Joaquin, State of California, in consideration payment by plaintiff the defendant of the of $81.00, agents duly its authorized thereto, its writing made insurance fire $1800.00, amount of copy is annexed hereto A,’ hereby marked ‘Exhibit and is referred to and made part hereof as if herein full; set forth in
“III. day “That on said 15th long of April, 1921, and for a prior thereto and up from that date to and includ- ing day July, the 2nd was the owner property City situated at No. South Main street, of Lodi, Joaquin San including County, State bf California, story the one occupied frame thereon for mercantile purposes and restaurant and the merchandise therein con- store, office, tained and the shop, furniture, and work fix- implements, signs tures equipment, tools supplies being incidental the business in said carried on premises;
“IV. “That now and all times herein mentioned property has been the owner of the situated at No. 10 South Main City of street, Lodi, Joaquin San County, State California;
“V. day “That on 2nd of July, 1921, story said one frame together all building, its including contents said mer- store, chandise and said office work shop, furniture, fix- equipment signs tures and and said implements, and tools *4 all supplies, and said were and each totally of them de- stroyed by fire.” The answer of consists of denial of
allegations paragraphs 3, 5, contained 4, 6 of the and complaint special and a upon alleged defense based policy by of twenty- cancellation the defendant 1921, day June, prior first and to the dav whiсh 353 Ins. v. day property destroyed by fire, wit, second July, 1921.
Among
provisions
other
of insurance between
the contract
following:
contains
and the defendant
building and
story roof frame
“1.—$1000.00. On the one
communicating
(if any)
its additions
construction
like
sidewalks,
including foundations,
and in
therewith,
contact
light-
stationary heating
wiring
electrical
and
plumbing,
and
fixtures,
ing apparatus
permanent
fixtures; also all
and
frescoes,
and
station-
awnings,
ceiling
wall
decorations
constituting a
ary
belonging to and
elevators,
scales and
occupied
part
mercantile
building, only
while
purposes
restaurant
situate as above.”
point
urged
and which is raised
first
for a reversal
complaint
appeal
does
the first time on this
is that
state,
show
of action on
it fails to
cause
because
thereby
building
was,
that the
from the
covered
including
issuance
until and
the time at
destroyed by
fire,
used
for mercantile
allegation
purposes, an
essential to
restaurant
which is
provision
of a cause of action under
statement
the above
objection
policy.
was no
There
demurrer to
complaint
sufficiency of the
to state a cause of action, nor
objection
any
during
was there
made in'the answer or
progress
by way
opposition
of the trial
to evidence offered
support
complaint;
but failure
object
complaint
to a
for want of facts is not
waived
may
(Code
be raised at
time.
Proc.,
Civ.
434;
sec.
Co.,
Arnold American
148
v.
Ins.
660,
Cal.
663
L. R A.
[25
(N. S.)
182].)
Pac.
It has been held
where,
here,
action
tois
оn an
policy,
insurance
recover
cause of action is not
complaint
stated unless it
shown
that the loss al
leged was within the terms of
policy.
In this case,
therefore, under the constr
placed by
action
the defendant
provision
the contract between the insurer
insured,
was,
and the
to state a cause of action against
necessary
indispensably
allege
destroyed
was, at the
fire,
used
purposes.
(Allen
insured for mercantile and restaurant
v.
Co.,
;
[62] App.—23 *5 Agaliakos Ins. Co. 354 v. [62 Co., 182], Agr. Germania Ins. See, also, Benicia Works v. Co., 512]; Mawhinny 97 Cal. v. 468 Southern Pac. ; 98 32 v. Man Cal. 184 R. Slinkard L. A. Pac. 945] 417].) Co., chester Fire 122 Assur. Cal. 595 [55 meaning As to provision policy the of the of the quoted that herein, appellant is the contentiоn words and restaurant “only while for occupied mercantile other purposes” building itself, while, on the refer to the provision hand, plaintiff interpreting that, insist (so case according grammatical construction, as in this to its mean contended) is construed, it it the said words should be ceiling awnings, wall and permanent fixtures, this: That all constituting belonging decorations frescoes, etc., and to or policy part building, shall remain covered said as only policy, for time, during the term of building restaurant “occupied for and shall mercantile be position purposes.” words, In other takes the independent provision comprises that and said two different subject paragraphs parts, a different dealing with each paragraphs matter; two to disсonnect the that the intention other, so that reference to the each should without be read clearly paragraph is not shown the fact that the second separated semicolon, first but commences that, natural “also”; considered, thus word as provision meaning article or and rational of the entire building, “appellant merchandise that insured shop, furniture, work store, fixtures and office and regardless occupancy, nature of but that equipment, of the fixtures, appellant only permanent awnings, wall insured long building ceiling frescoes as decorations occupied .purposes.” and mercantile restaurant 9.) (Resp. p. brief, There is thus much force take in provision view counsel for necessary partiсular is not to determine this
question; but it assuming since, defendant’s controversy herein, provision sound, conceding, construction done, state a ease for the necessary, it must allege of the fire at the time plaintiff, that the pur occupied and restaurant used mercantile complaint persuaded to the belief poses, we are thereto, of demurrer paragraph absence thereof, Ins. particular. is sufficient in will observed that It paragraph effect, alleged is, in that from the date including issuance to and down day July, day destroyed second 1921, on which it was fire, occupied for mercantile and restaurant *6 purposes. complaint regard may The in this be amenable but, criticisms of special the a demurrer grounds, еven so, sufficiently it is clear was, to show the at the time of fire, the used for mercantile restaurant and purposes. clearly paragraph At the facts stated in 3 least imply the existence of the at the was, fact that the fire, occupied time of the and used for purposes, is sufficient, in of a absence demurrer or other appropriate timely objection pleading. to the courts objections are plead disinclined to view with favor ings specifically made for judgment first after where it is clear that, upon suggestion trial, before the de or easily fect defects could have been or remedied overcome. Speaking of such a in which, situation a case we have seen, precisely point involved the same as the one we are now considering, is said in Arnold v. American Co., supra:
“A rule, somewhat liberal therefore, frequently has been applied construing complaint a objection where the is judgment. made for the first after Facts essential to a appearing by of action implication cause reasonable only, allegations made in form of a legal conclusion, merely implied necessary material facts, have against objection. been held sufficient as such an An ex- ample is of this of v. Winter, case Penrose 135 Cal. 772], no allegation where there was other of the nonpayment of except allegation essential fact owing,’ ‘there now due and etc. This was held sufficient judgment, ground after ruling being objection was rather to the manner of pleading an essential allege fact than to total failure such fact, and that faults, absence of demurrer, are cured judgment.”
While, obviously, admission, the mere expressly either or impliedly, for of counsel the defendant complaint that in the is sufficient statement a cause action cannot have making complaint wanting the effect a facts sufficient Ins. Co. undoubtedly good pleading, yet this case that it is true complaint herein for counsel assumed that the they failed to chal- respects, sufficient in all lenge legal sufficiency by test- its mode other demurrer opening ing sufficiency pleading, but, on of a stipulation the trial, voluntarily expressly limited policy alleged cancеllation trial issue of building and its prior destruction of the date stipulation is follows: contents fire. The the defendant Levinsky: will on behalf of “Mr. admit We Force, Mr. agent, issued De proof loss was made Lodi, occurred, and that a fire paid, and the if has been time, and nonpayment canceled reason has been unpaid and $1,800 been otherwise, that amount has loss.” clear, admission of all involves an stipulation, This it is of action cause facts essential statement policy. recovery We are now to consider the next point insisted *7 actually policy was can reversal, wit, whether the contents day its prior on which the celed to the alleged complaint. It was ad destroyed as in the were plaintiff the defendant ad by at the triаl that mitted the writing, plaintiff a in the notice to and served dressed 1921, premium $81 to the effect that the June dated policy question in had not been defendant under the due the notified that “unless paid, and further likewise days paid five from the date premium on before said thereof, the whole policy and notice, service of any, canceled mortgage agreement, if will stand including notice, and premium without further nonpayment of liability will exist there null and and no void, thereafter ’’ under. is not a readily perceived that the above notice It will be merely a notice of intention It was of cancellation. notice designated time within the policy unless cancel the ipso operate, facto, to cancel paid. It did not prеmium he that unless merely the defendant notified policy, but time stated therein the condition complied policy would be canceled. in specified 35? plaintiff positively he, The in three testified that different Byron installments, one paid premium $81 in cash Lodi, Force, agent A. De local of the defendant through policy whom herein was involved insurance by long prior receipt issued of the to the notice. ques- De Force was made a witness defendant and closely payments tioned as to of the claimed matter by the plaintiff, owing that, but stated to the fact that he suffering was from alcoholism was about say issued and for thereafter, some time he was unable to money paid how much premium was or in what man- paid. ner it In his fact, was so unsatisfac- tory indeed, unintelligible upon and, subject so matter judge impelled thereof trial that to remark: “The certainly anything not specifically, witness has testified to any in fashion that court can consider it.” He did deny receiving payment of premium full nor did he affirm payment. had received such we shall As see, later counsel for the him defendant undertook to make say part payment of the for the application personal of a debt he owed premium, satisfaction of the amount due on the but he seemed to remember whether such was the unable fact or not testify it was and refused the fact. specifically
It was found the court that plaintiff was issued to the insurance not canceled defendant manner stated the notice and at the alleged finding answer, in the from this the find- ing implied testimony. him in mentioned his
at the times testi- mony plaintiff, evidently if the court, of the believed specific justify finding sufficient to was, finding payment and the policy was canceled necessarily implied therefrom. At rate, said *8 findings support testimony sufficient to the of noneancella- is payment premium policy the the thereon. tion of testimony worthy being in is record no there the Indeed, contradictory the which to so characterized premium paid the in full to defend- the that he receipt by plaintiff Force, before the the agent, De ant’s App. v. American Central Ins. Co. notice from purpose policy defendant of its the cancel if paid required by the were not said notice. Counsel the defendant contend, however, that, it rights since pol within the under the the defendant icy stating any issued arbitrarily without or reason policy therefor to cancel end the insurance before the term the for which was issued, it effect of the ipso notice operated, facto, to cancel and so invalidate policy. policy force of It is true that the issued provides that either insured or the insurer may any time, specific any giving any without or reason therefor, policy cause the be canceled. But the here case following is not one in which insurer, provision policy authorizing policy merely upon it cancel giving days’ the insured notice, five has to cancel elected arbitrarily unexplained the policy or for reasons. And it Wing Chung Long for this reason that the case Co., Prussian 358], Nat. Ins. 33 Cal. supporting position with cited defendant as its re gard to involved, effect notice herein is not in point. case, appears opinion In that it two that different written notices were served the insured at first, January, different times. The was served in precisely 1913, was the same as the one here. The second 25, March was an was dated unconditional notice policy. properly was cancellation of the It held policy defendant under terms that case that the of the right arbitrarily elect to cancel had the not policy, withstanding previously a notice had that been served declaring it be the intention of insured the in policy paid unless surer cаncel insured default, which he was then in within premium, as to five words, notice. In days the date of such other from- though insurer cancel the held could even necessity been there no under policy for the insurer to state in the notice terms grounds upon cancellation, which, or reasons for prior which, canceled notice canceled in stating would be case the that it specified time was not to he considered as paid subsequent having connection limiting readily its Thus it is qualifying effect. to is a perceived there marked distinction between *9 Agalianos 359 Ins. v. case and the one operate, at bar. Here the notice did not propria stated, ex vigore, policy, but, to cancel the as above amounted of one intention to cancel there- If, it. fore, plaintiff days five the date paid notice life of the policy would, legal perpetuated of course, be retain its integrity to of its in the it term, the end unless meantime by was canceled either the insurer or the insured under provision right of policy investing mutual them with the cancellation, of arbitrarily. having it been exercisable But shown paid receipt had been before the plaintiff contingency notice, it follows that the (failure plaintiff pay premium) upon happening of which the force of the was, terms virtue of said happen terminate, policy, did and the therefore, remained in full force effect. assignments rulings
The next of error involve of the court disallowing questions propoundеd answers to certain to cer- tain witnesses assign- counsel for defendant. These ments numerous, general are but nature, are of the same may grouped therefore thus considered. theory upon sought bring pro posed but excluded the record into was that Force, Lodi agent, scope defendant’s De transcended the authority agent by his as such accepting, payment as in premium, part payment as in thereof, least plaintiff (De cancellation a debt Force) which he goods (See owed the former and merchandise. Tomsecek Qo., Travelers’ 113 v. Ins. Wis. 114 Rep. Am. 846, St. [90 455, 1013]; 57 L. 88 W. Briggs R. A. N. Collins, v. 113 Ark. 686, 190 1915A, R. A. 167 1114]; S. W. Sullivan [L. v. Co., Germania 15 Ins. 522 Mont. Pac. 742]; Folb [39 Life Co., v. Ins. 133 Firemen’s N. C. 179 547]; S. E. Texas [45 Davidge, 244; 51 Ins. Co. v. Tex. Hancock, Life Mutual Hoffman Co., 92 U. 161 S. 539, L. Ed. see, also, [23 Life Notes]; Wiley Wood, Rose’s U. S. Allеn B. Co. v. 32 Cal. App. 82 76, 121]; Pac. Briggs, Stetson v. 114 Cal. [162 603].) stipulation
After counsel the defendant as to plaintiff the truth certain facts was made evidence, objection, introduced without proof loss, properly the latter admitted to made, v\ Ins. Co.
defendant, under section 2155 of Civil Pro- Code cedure, called above, as a witness. As stated apparent repeatedly, and emphasis, de- clared in of his course examination coun- defendant’s sel part premium, whole thereof *10 in part by cash and a means of a check. then He was by asked attorney question defendant’s the the to direct as premium whether the paid partly partly was not in cash and by deducting personal a debt him, that De owed Force plaintiff the answered that Force time De had at never him any money owed or any pur- was him indebted to for pose. To testimony by plaintiff contradict the the defendant called and, De Force to the witness-stand as above stated, by undertook paid to show him that the was partly by plaintiff deducting the therefrom the amount of personal indebtedness of said De De Force, Force. as shown, did not seem to remember how or in what manner paid. the was Counsel then the asked witness a number of questions, purpose, for was as stated at showing by time, particular what means the was and the business for which the was used at time the was issued and the occurred. fire As questions illustrative of the character of the asked for purposes following: stated are Plaintiff was a-sked сounsel for the whether defendant Force was in the De habit buying liquor (plaintiff’s) place at his if and also it was he friendly true that on De were Force terms issuance of the time and down to premises by Objections destruction of the fire. questions these were sustained the court. Also the fol- questions propounded lowing De Force: Whether he had purchased liquors plaintiff for which did not he pay of which plaintiff and the amount deducted premium; total amount due for from the whether or not plaintiff 1921; year was indebted De Force paid plaintiff whether witness an which indebtedness (De Force) April, 1921; he admitted he owed him in as to plaintiff in which engaged nature of the business year questions objections 1921. To all these in the were general objections grounds, made and the sustained court. Counsel the defendant asked also wit- questions impeachment nature of an ness some Co. 361 v. objections which ground the court sustained attempt by impeach was an defendant own witness. his rulings assigned These are also as erroneous. questions which refused the court plaintiff
to allow the to answer which called light upon have could reflected no substantial the issue which being certainly tried. It was immaterial whether the plaintiff upon friendly terms, De Force and the were question propounded to the to the business engaged fire, perhaps proper at the while preliminary leading finally one, one direct categorical question particular purpose as to for which being was then used, was so indefinite as to justified objection sustaining have an the court thereto. suggested go directly The court counsel should question occupancy questions and not appeared ask wholly to be their face quite immaterial. It is mani- might engaged fest that the have been in a business other than the mercantile restaurant business and still building upon placed which the insurance was used for purposes policy. stated in the
[5] There *11 was no error in sustaining objections to put the questions by to De Force counsel for the defendant requires slight which are above adverted It scrutiny to. but given testimony by witness, if, indeed, said it can properly testimony, be called make to it clear that he could explanation give not rational of the details of the upon whiсh transaction action founded. It ad by him, mitted it will be recalled, that at the time of the payments issuance the times at on the by plaintiff, were he made was under in liquor to an impossible fluence of extent that rendered definitely him or in for to state how what by manner payments say were He what means the made. did on one however, occasion, receiving that he remembered a check part payment in as premium, but that receiving any no reco1lection of he had cash payment, although affirmatively say did did he not he not also part premium. in is, cash as satisfaction of receive It quite plain that, therefore, even if the court had allowed him question propounded to counsel for the defend paid, means which the ant as to the he Ins. Co. v. give any satisfactory would have able to more an been calling given questions swer thereto than to he had testimony propounded previously the same him. Hence it to rulings upon questions held that court’s cannot be those Indeed, properly have ex were erroneous. the court could questions cluded are now con the answers said that we sidering ground questions previously on the that similar had been first above ex witness, asked with the result plained. questions
The impeaching the court disallowance questions propounded to De Force other likewise same did not in- witness the nature of cross-examination volve error. questions attorney
One of the asked of De Force defendant, for the of cross-examina which was the nature tion, evidently purpose laying for the the foundation introducing proof impeachment testimony his in a require particular, im certain case his answer should at the peaching proof, whether intoxicated he signed certain affidavit to he effect that day April, 1921, paid him in full was on the fifteenth plaintiff. agent of the defendant said affi was, objection by davit without introduced in by plaintiff’s attorney during his cross-examination evidence just previous Force, stated, who had the introduc De tion of the document, that he executed the same. In objection question sustaining as to whether De signed was in an intoxicated state when affi Force properly held the trial court the document in davit, testimony, stating incоmpetent the same volved go have been allowed to into affidavit would not objected to it if counsel for record correctly declaring that, as to the rule further incom objection admission of no petent allowable. cross-examination made, *12 De defendant’s question asked of Force coun Another in character to the whether similar sel being say, prior to his called to witness- did not witness attorneys presence of the the de one stand, portion a persons, that certain other named fendant application thereto premium amount witness which the owed debt a certain personal 363 v. American Central plaintiff. already pointed not out, As the witness was able, prior give asking question, of said a rational account of the manner in which or the which the means paid. testimony did Indeed, in his nowhere positively militating he affirmatively or make statement against payment the case of either as to building. occupancy must As readily be inferred from what has been to the said above as general testimony, character all of his it is manifest that can said of testimony, far as its effect so case of is it did concerned, up expectations not measure to the In other the latter. words, testimony De payment Force’s merely disappointing defendant in that testify favorably he did not to it as it wished or had however, justify desired. Such do not disappointments, impeachment cross-examination of one’s witness. own One may cross-examine his own witness for the pur pose laying impeachment the foundation his and so impeach him, if can, by surprise he if he taken given (See. testimony by such 2049, witness. Code Civ. surprise Proc.) open way But will to such must be substantial. It must course founded on given has testimony only fact that the witness at variance party producing with him good what the as witness calling believe, him reason to before to the witness-stand examining him, be, it would but testimony that such prejudicial or detrimental case party. of such in principle thus stated is sound rule as but accords spirit as well as letter of section 2049 of the Procedure and is Code of Civil sustained cases treat subject. repeatedly ing It has been held that the mere give of a witness to favorable party failure for the party prоve producing him does not entitle such contrary elsewhere, made statements has when tes timony party pro such witness is of that character the ducing accept given. him is bound as it same is so (See 532 People Creeks, v. 141 101]; People Cal. Pac. [75 43]; Zipperlen Cook, 334, Cal. 345 Pac. v. 148 Soutlb v. [83 App. 214-217 Co., ; ern Pac. Pac. 1049] People Spencer, 380].) 58 Cal. *13 Agallynos App.
364 Cal. [62 American Central Ins. Co. v. rulings There which are other than the above to counsel they disposition questions similar object, but involve therefore, they be need, those above considered given special notice herein. supporting lastly no
It is is evidence contended that there building occupied for mercantile finding finding fire. The purposes and restaurant time of the at the paragraph language occupancy is in third as to complaint sufficiently shows, hold is true we occupied complaint, times from the purposes in the at all date stated including policy to and the time that the issuance of the 2, destroyed by July fire on and contents were 1921. As to the contention, however, that there is no support finding, it is first to remarked evidence subject record review point is not specifica exceptions bill us contains no because before (Sec. support insufficiency it. of the evidence tion of the Proc.; 797, Millar, Millar v. 175 799 Civ. Cal. 648, Code 184, 1918B, 394], R. 167 1918E, 415, L. A. Pac. Cas. [Ann. Meade, 36 cited; Smith v. Cal. 173 therein cases 537, ; In Matter 542 Baker, Pac. 815] reply point 12].) a conclusive is that But whereby counsel for the defendant admitted stipulation involvеd, material facts of certain as we have existence all out, admission of the essential pointed above case, except pay in this the issue as to the facts material and, of the policy, cancellation ment finding occupancy is true that as to therefore, if it be positive supported by respect insufficient or not tes deficiency. stipulation supplies Indeed, timony said necessity to, referred there stipulation was no view occupancy, question of it is finding since finding of facts no essential the truth settled well necessary required. admitted is affirmed. judgment The J., Burnett, J., concurred. Pinch, P. foregoing opinion was modified the district court 20, as follows: on June appeal
May, 1928.] Ins. Co. language contained following HART, J. therefrom: will be stricken case opinion in the above-entitled readily perceived that the will “It intention merely a notice of It a notice cancellation. designated cancel unless cancel operate *14 to premium paid. ipso It did facto unless that merely policy, notified the defendant the but time within the complied stated condition therein with the canceled.” specified policy would be in notice the the following inserted language will be In lieu the opinion: in the notice was a condi- perceived above
“It that the will be notified the defendant notice of cancellation. It tional within stated complied with the condition therein unless he can- would stand specified in the notice time the the in рayment insured defaults the in such case the celed. If upon specified, then, the premium time within the the operates, ipso time, notice expiration the of said facto words, In policy. other instmti, to cancel the et eo pay premium having within insured failed to the case, the operates then to cancel the prescribed notice time, the the or other the policy and no other further notice action policy. necessary effect a cancellation insurer is to paid premium hand, other the be the insured If, on the specified notice, then the the within the notice policy will remain a and effect and the further force no between the insurer and the insured.” contract valid language also bе stricken from the following will opinion: readily perceived a marked be that there is
“Thus and the at bar. the one Here between case distinction propria vigore, operate, ex to cancel did not notice stated, amounted one of inten- but, policy, it.” cancel tion to language following be inserted will of this
In lieu opinion: in the distinction marked between is, obviously,
“There at bar.” one case and the
is made It should because of a suggestion explained to the writer above modification opinion, Appellate Decisions, publication in the California its after opinion imply language from the seemed stricken that v. Cal. App. Co. [62 that, in the event that pay the insured failed to pre- mium within specified notice, in the said notice would not operate, ipso then facto, policy. to cancel the We did not intend language hereby use ex- punged from opinion so to We never declare. supposed moment notice, in- default sured payment in the desig- within the time therein, nated would not stand as an cancellation absolute policy. appellant Counsel for briefs their seemed to hold to though the view that, even were prescribed within the time, could, insured nevertheless, treat a® one unconditional can- cellation, to take expiration days effect of the five required paid, amounting, in effect, to cancellation which either insurer liberty provi- or insured was at to effect under the policy giving sion of parties in- contract of right surance mutual to cancel or surrender arbitrarily stating any or without reason This therefor. language contention when we mind we used the merely attempted stricken We say out. that a notice *15 stating specifically a condition alone would canceled would have that effect unless the con- complied dition were not insured within the time performance. fixed for its we can But see language hereby force criticism that the stricken opinion might justify implication that, if the prescribed time, was not within the a cancella- policy would tion of the not then but effected, that there required further Clearly, would be notice to that effect. language correctly so would not construed state the position matter,- our and, rule as to that to make clearer glad proposition, are opportunity we make the above modification.
Burnett, J., Pinch, J., P. concurred.