Taliaferro v. Industrial Indem. Co.

• Decision Date: 28 February 1955
• Court: California Court of Appeals Court of Appeals
• Parties: E. A. TALIAFERRO, doing business under the name and style of Davis Auto Exchange, Plaintiff and Appellant, v. INDUSTRIAL INDEMNITY COMPANY, Defendant and Respondent. Civ. 16151.

Page 114

280 P.2d 114

131 Cal.App.2d 120

E. A. TALIAFERRO, doing business under the name and style of Davis Auto Exchange, Plaintiff and Appellant, v. INDUSTRIAL INDEMNITY COMPANY, Defendant and Respondent.

Civ. 16151.

District Court of Appeal, First District, Division 2, California.

Feb. 28, 1955.

E. A. Taliaferro, in pro. per.

Thelen, Marrin, Johnson & Bridges, San Francisco, for respondent.

DOOLING, Justice.

Plaintiff appeals from a judgment entered after a demurrer to his amended complaint was sustained without leave to amend.

In his original complaint plaintiff sought to enjoin the commencement of a threatened action at law by defendant to collect $1,225 alleged to be due under a policy of insurance covering workmen's compensation liability. Plaintiff alleged that defendant had 'illegally, unjustly, arbitrarily, unlawfully, and unreasonably fixed, determined, levyed (sic) and assessed against plaintiffs an additional premium charge allegedly due and payable' under its policy in an amount of $1,225, and that defendant threatens to sue plaintiff for that amount, to attach plaintiff's property and business and that they have assigned their claim to Wholesalers Adjustment Bureau for that purpose. It is further alleged that this would constitute an unlawful and illegal interference with plaintiff's business, damage his credit and credit rating and ability to finance and conduct his business and result in his irreparable injury. The prayer was for an injunction and damages.

After demurrer sustained to this complaint appellant filed his amended complaint containing substantially the same allegations and adding an allegation that pursuant to section 11750.3 of the Insurance Code plaintiff had a right to have a reconsideration of the test audit resulting in defendant's charge and an appeal to the Department of Insurance from any adverse decision of the California Inspection Rating Bureau and that the action of those 'tribunals' was a condition precedent to the legal right to enforce such claim.

Plaintiff then added allegations that for the past seven years defendant had 'wrongfully, erroneously and illegally charged and collected from plaintiffs sums of money' under its policies 'upon the basis of wrongful and erroneous classification of plaintiffs employees which * * * was induced by defendants and relied upon by plaintiff as a result of misrepresentation of the rules, regulations and procedure pertaining to the classification of said employees according to the established practice of the fixing of insurance and indemnity rates all of which was well known to defendants and unknown to plaintiff.' It is alleged that the amount of such overcharges is unknown to plaintiff but amounts to more than $3,000. There is a further allegation that these facts were not discovered by plaintiff until 1952.

This is the complaint to which a demurrer was sustained without leave to amend. The amended complaint was defective in alleging many conclusions of law, but appellant argues that since it could have been amended to state a cause of action it was error to sustain the demurrer without leave to amend. Code Civ.Proc. § 472c; Wennerholm v. Stanford Univ. School of Medicine, 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358.

We are satisfied that under well settled rules the complaint could...