Vaughn v. Certified Life Ins. Co. of Cal.

• Citation: 238 Cal.App.2d 177,47 Cal.Rptr. 619
• Parties: Carl L. VAUGHN, Plaintiff and Appellant, v. CERTIFIED LIFE INSURANCE COMPANY OF CALIFORNIA, Defendant and Respondent. Civ. 28760.
• Decision Date: 17 November 1965
• Court: California Court of Appeals

Page 619

47 Cal.Rptr. 619

238 Cal.App.2d 177

Carl L. VAUGHN, Plaintiff and Appellant, v. CERTIFIED LIFE INSURANCE COMPANY OF CALIFORNIA, Defendant and Respondent.

Civ. 28760.

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

Nov. 17, 1965.

As Modified Nov. 18, 1965.

Frank R. Saletri, Los Angeles, for plaintiff and appellant.

Bayard R. Tanksley, Burbank, for defendant and respondent.

ROTH, Presiding Justice.

On September 25, 1963 appellant Carl Vaughn filed suit in the superior court against respondent Certified Life Insurance Company for actual and punitive damages.

After two demurrers by respondent ¹ were sustained, appellant filed a second amended complaint in two counts.

Appellant in his first cause of action, in the form of a common count, alleges that on or about October 3, 1961 respondent became indebted to him in the sum of $128.25, which money was 'an agreed price' paid to respondent as a premium on a certain hospital and medical expense insurance policy, and that no part of it has been paid to him. There is no allegation nor is there any legal implication from the allegations which are made that there was an agreement to repay. The third paragraph alleges that respondent acted fraudulently and maliciously in taking appellant's money and refusing to honor the terms of the policy, and asks for punitive damages in the amount of $50,000. The trial court sua sponte struck the third paragraph and sustained the demurrer on the ground it had no jurisdiction and it stated no cause of action.

Appellant's second cause of action more fully sets forth the circumstances of the suit and sounds in fraud.

It is alleged that: on or about October 3, 1961 respondent sold appellant a Hospital and Medical Expense Insurance Policy for a certain specified premium; said policy included an elimination rider which excluded all payments 'for loss incurred by such person resulting directly or indirectly, wholly or partly from any injury to or disease of my spine or operation therefor'; on or about February 16, 1962 appellant was injured in a traffic accident, and as a result thereof incurred hospital-medical expenses in the amount of $763.18; thereafter appellant made a claim to respondent for payment of the bills, but the respondent refused to honor the claim on the grounds of the elimination rider 'when in fact, the injuries so suffered by the Plaintiff were to the muscles, ligaments and tendons of the back, and not to the bony spine proper, as the [respondent] well knew at the time of refusing Plaintiff's claim.'

Appellant refers to 'said representations' many times in his second cause of action but nowhere directly states what those representations were. In paragraph VI he alleges in part: '* * * that said representations were false and fraudulent in the following particulars:

'(a) The Defendants, and each of them, in fact informed Plaintiff that said Elimination Rider attached to said Policy was intended by them to eliminate from Policy coverage only injuries to the bony spine proper, and that any injuries to the muscles, ligiments [sic] and tendons of the back would be covered under said policy and not subject to the elimination rider portion of said policy.

* * *.'

Appellant further alleges that he relied on the representation and would not have entered the contract had he known of its fraudulent nature; that he has been damaged in the amount of $128.25 for the premium, and $763.18 for hospital and medical expenses; and that he is entitled to punitive damages of $50,000.

Respondent's general and special demurrer to the second amended complaint was sustained with leave to amend in 20 days.

Appellant's motion to reconsider was denied and upon respondent's motion to dismiss the complaint and each count thereof, appellant having failed to amend within the time required or at all, judgment was entered. From this judgment this appeal is taken.

Appellant has failed to state a cause of action either in common count or in fraud. When a plaintiff is given the opportunity to amend and elects not to do so, the presumption is that he has stated as strong a case as he can. In such a situation, strict construction is required. (Lucas v. Roberts, 201 Cal.App.2d 365, 366, 20 Cal.Rptr. 23; Melikian v. Truck Insurance Exchange, 133 Cal.App.2d 113, 115, 283 P.2d 269; Curci v. Palo Verde Irrigation District, 69 Cal.App.2d 583, 585, 159 P.2d 674.) When the circumstances are such as in the case at bench, if the complaint is objectionable on any ground, the judgment of dismissal must be affirmed. (Totten v. Underwriters at Lloyd's London, 176 Cal.App.2d 440, 442, 1 Cal.Rptr. 520.)

Historically, the common count derives from the writ system of the common law. (Philpott v. Superior Court, 1 Cal.2d 512, 518, 36 P.2d 635, 95 A.L.R. 990.) It is based upon an archetypical legal relationship, pleaded as a general conclusion of law, from which the plaintiff's right to the relief he seeks is derived. ² However liberal the rules permitting common counts may be, there must be some certainty in respect of the obligation a plaintiff seeks to enforce. It is settled in California that a common count, to be sufficiently pleaded, must state not only the indebtedness of the defendant but also directly or impliedly the relationship or the express or implied legal principle upon which a promise to plaintiff is predicated. Nothing is alleged in Count I which expressly or impliedly creates an obligation to repay anything to appellant. (Fox v. Monahan, 8 Cal.App. 707, 709-710, 97 P. 765; Bouey v. Porterfield, 96 Cal.App. 674, 680, 274 P. 766; Smith v. Bentson, 127 Cal.App.Supp. 789, 794, 15 P.2d 910.)

In Smith v. Bentson, supra, the court says at page 794, 15 P.2d p. 911: '* * * [A] complaint is not good as a common count unless it either expressly alleges a promise by the defendant to pay or alleges facts from which such a promise is implied by law.' In the case at...