Reichert v. General Insurance of America

442 P.2d 377, 68 Cal. 2d 822, 69 Cal. Rptr. 321, 1968 Cal. LEXIS 210

• Court: California Supreme Court
• Decided: July 3, 1968
• Docket: L. A. 28767
• Status: Published

Opinions

SULLIVAN, J.

Plaintiff, Ronald 0. Reichert, appeals from a judgment of dismissal entered on an order sustaining defendants’ demurrers to plaintiff’s second amended complaint without leave to amend.¹

Plaintiff’s original complaint, naming five insurance companies as defendants (see fn. 1, ante) and containing a single cause of action, alleged in substance as follows: That on February 1, 1964, plaintiff purchased from defendant American National Insurance Company (American National) “The Bakersfield Inn,” a 325-unit motel worth $1,500,000; that said seller took back a first deed of trust to secure $850,000 of the purchase price; that as part of the transaction plaintiff received assignments, presumably from the seller, of four fire insurance policies then in effect and issued respectively by the other four defendant insurance companies, thus providing a combined coverage of $1,375,000; that in order to induce plaintiff to purchase the property and the policies, all five defendants represented to plaintiff that they would indemnify him for any damage or loss arising from fire or explosion to the extent of the policy limits; that said defendants further represented that in the event of a loss they would make payment of plaintiff’s claims “fairly and with promptness and dispatch”; that on February 19, 1964, a fire caused damage in the amount of $424,000 to the motel; that the loss was covered by the policies of the four defendant insurers but said defendants refused to honor plaintiff’s claim of loss, thereby causing plaintiff to lose possession of the motel; that the representations made by defendants in connection with the policies were false and fraudulent, were made pursuant to a conspiracy to defraud plaintiff, and were made with the intention of not performing the promises given to plaintiff; and that all five defendants acted in concert with the intent and purpose of causing plaintiff to lose his equity in the motel. Plaintiff prayed for $1,500,000 actual and $5,000,000 punitive damages. Defendants’ demurrers were sustained with leave to amend upon the ground, among others, that plaintiff lacked capacity to sue.

Plaintiff’s first amended complaint named as defendants only the four insurers, the action having been dismissed as to American National. It contained eight stated causes of action: four common counts (one against each defendant separately) for money had and received and four causes of action (one against each defendant) for fraudulent failure to adjust the fire loss promptly. The first amended complaint contained no allegations as to fraudulent representation or conspiracy. Again defendants’ demurrers were sustained with leave to amend.

Plaintiff’s second amended complaint here under review contains nine separately stated causes of action. Except for an insignificant addition of language in one instance, the first eight counts are a word-for-word repetition of the first amended complaint which, as we have said, was vulnerable to demurrer. To these the pleader has added a ninth cause of action against all defendants 11 for bad faith. ’ ’

The first four causes of action are common counts against each defendant separately for money had and received. In each instance, the common count, after reciting the corporate status of the particular defendant, alleges that “on or about February 1, 1964,” said defendant “received and collected to the use and benefit of the plaintiff” a specified sum of money.²

In the next four causes of action, after allegations as to the purchase of the motel, the assignment of the insurance policies and the fire loss, plaintiff in separate counts as to each defendant, alleges in words and substance as follows: That although plaintiff did all things necessary, defendants “did not take steps to adjust and settle the loss and damage” promptly and without delay and denied plaintiff’s claim of indemnity; that “under the contract of insurance the carrier had the duty and obligation to come forward to the aid of its policyholder for the purpose of settling and adjusting the policyholder’s loss fairly, promptly and without delay”; that “The refusal of the insurance carrier to proceed promptly to adjust and settle plaintiff’s loss due to the fire, caused plaintiff to lose possession of the property, and as a result of the failure of the carrier to indemnify plaintiff, plaintiff was adjudicated a bankrupt on July 24, 1964”; that “the bankruptcy of plaintiff was directly caused by the bad faith conduct on the part of the insurer”; that “in refusing to come to the aid of its policyholder with promptness and dispatch, the defendant insurance carrier is guilty of oppression and fraud, and the insurance carrier has by its actions wilfully refused to perform its contract”; and that “as a direct result of the fraud and oppression . . . the plaintiff has been deprived of and caused to lose a property reasonably worth $1,500,000.00, all to his damage in that sum. ’ ’

The ninth cause of action against all four defendant companies incorporates by reference the aforesaid allegations of fire, loss and refusal on the part of defendants, and further alleges in words and substance that “By the terms of the policies,” defendants agreed to indemnify plaintiff for the loss; that “defendants impliedly promised and offered to settle and adjust any losses in a prompt and fair manner without unnecessary delay”; that contrary to their “promises and representations,” defendants “did not offer settlement of the loss, nor did they undertake repair of the damaged portions of the property insured”; and that “As the direct and proximate result and failure to exercise the highest degree, or an ordinary degree, of good faith, care, skill, or diligence for the protection of plaintiff’s rights, which were entrusted by plaintiff to defendants for protection, and of the defendants’ breach of their trust obligations, plaintiff has been damaged in the amount of $1,500,000.00, plus interest.”

We observe preliminarily that the allegations of the ninth cause positing an implied contract to adjust the fire loss do not spell out the basis for plaintiff’s loss of the motel as precisely as do the allegations of the preceding causes of action positing express contracts to adjust the loss. Significant, however, is the fact that in none of the allegations of the various complaints or causes contained therein has plaintiff alleged that the compensatory damages which he seeks are related to anything other than the property which was damaged by the fire. Moreover, the $1,500,000 in alleged compensatory damages is the exact amount that the property is alleged to have been worth. Although the complaint contains allegations of bankruptcy, and that the adjudication thereof was “caused by the bad faith conduct on the part of the insurer,” the fact of the bankruptcy, or the filing of the petition therein, is in no way alleged to have caused the $1,500,000 loss to plaintiff. According to the allegations, the bankruptcy is not a cause of plaintiff’s loss, but like the loss is a result of defendants’ alleged bad faith, oppressive and fraudulent conduct in failing to come to plaintiff’s aid as defendants were expressly or impliedly obligated to do.

All four defendants filed general and special demurrers asserting inter alia, that the second amended complaint does not, nor does any of its causes of action, state facts sufficient to constitute a cause of action “in that no cause of action is stated in the plaintiff.” When the parties appeared to argue the demurrers plaintiff’s counsel made an oral motion to disqualify the trial judge under Code of Civil Procedure section 170, subdivision 4.³ Counsel stated, and the judge acknowledged, that until a date shortly prior to the motel fire and less than one year prior to the commencement of the action, the judge had been associated with the law firm which had represented American National, named as a defendant in the original complaint. (See fn. 1, ante.) The motion to disqualify was denied.

The parties then argued the demurrers, defendants contending as they had on the earlier demurrers that plaintiff had not only failed to allege a cause of action arising out of defendants’ conduct but that any cause he might allege had become vested in the trustee in bankruptcy upon plaintiff’s adjudication and that he therefore lacked capacity to assert such a cause. The court’s order sustaining the demurrers without leave to amend recites that plaintiff has not stated a cause of action for any recoverable element of damages, and that any cause of action stated by plaintiff had passed to the trustee.⁴

The central question in this case is whether the several causes of action pleaded in the second amended complaint are actually vested in plaintiff himself or in his trustee in bankruptcy. To put it another way: Has plaintiff shown that he has the right to assert these claims or has such right passed to the trustee ?

Our resolution of the problem turns on the federal statute. Section 70 of the Bankruptcy Act (11 U.S.C.A. § 110) provides in pertinent part as follows: “(a) The trustee of the estate of a bankrupt . . . shall ... be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title ... to all of the following kinds of property wherever located . . . (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered: . . . (6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property; . . .” As will appear the causes of action which plaintiff attempts to assert fall within the categories described by clauses (5) and (6). We have concluded, therefore, that they are rights which passed to the trustee upon plaintiff’s adjudication in bankruptcy, that they are not actionable claims resident in plaintiff, and that the demurrers were properly sustained. The judgment of dismissal must therefore be affirmed.

We first take up the last five causes of action (fifth through ninth causes). Our consideration of these five causes together works no distortion of them, since, as we have pointed out, they involve a common gravamen—the failure of defendant insurers to adjust and settle the fire loss and damage promptly and without delay. The fifth through eighth causes of action make this charge against the four companies separately; the ninth cause, by the usual technique of repleading and incorporation by reference, makes the same charge against all four companies jointly.

It is manifest that these five causes of action constitute “rights of action arising upon contracts.” (Bankruptcy Act, §70, subd. (a)(6); 11 U.S.C.A. § 110, subd. (a)(6).) Each of them attempts to plead a cause of action for damages for breach of contract, namely, the particular insurance policy involved,⁵ and to that end attempts to allege the essential elements of such a cause of action: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff. (Wise v. Southern Pac. Co. (1963) 223 Cal.App.2d 50, 59 [35 Cal.Rptr. 652] ; 2 Witkin, Cal. Procedure (1954) p. 1226.) Thus, in causes of action under examination, plaintiff alleges that he is the owner of the particular fire insurance policy, that upon occurrence of the fire and loss, he “did all things necessary on his part to do,”⁶ that the defendant insurer failed and refused to proceed promptly to adjust and settle plaintiff’s loss, and that as a result plaintiff suffered damage. A number of phrases scattered throughout further bespeak the contractual character of the right asserted, as for example: that defendant denied plaintiff’s claim for indemnity “under the policy of insurance”; that “under the contract of insurance” defendant had a duty to adjust the loss fairly and promptly; that defendant “has by its actions wilfully refused to perform its contract” (italics added). The embellishments added by the pleader, as for example, that defendant “in doing all of the things as herein alleged, has done them deliberately, fraudulently and oppressively, ’' and that defendant is “guilty of oppression and fraud, ’’ aside from their obvious eonclusionary character, do not derogate from the contractual character of the pleading. In sum, it is abundantly clear that the liability sought to be imposed arises upon a contract.

This brings us to the allegation of damages caused by the breach. It is manifest at the outset that while plaintiff alleges a fire loss of $424,000, he nowhere seeks recovery of said sum. What plaintiff does seek to recover in the last five stated causes of action are in the nature of consequential damages flowing from the breach, which were actually contemplated or within the reasonable contemplation of the parties. (Civ. Code, § 3300; see Hunt Bros. Co. v. San Lorenzo Water Co. (1906) 150 Cal. 51, 56 [87 P. 1093, 7 L.R.A. N.S. 913] ; Weaver v. Bank of America (1963) 59 Cal.2d 428, 434 [30 Cal.Rptr. 4, 380 P.2d 644] ; Ely v. Bottini (1960) 179 Cal.App.2d 287, 294 [3 Cal.Rptr. 756].)

Plaintiff argues, however, that the claims asserted in the last five causes of action arose after the filing of his petition in bankruptcy, are “personal” to him, and did not vest in the trustee. But he has directed our attention to no authorities supportive of this argument. Nor has he demonstrated how the several causes of action here involved arose not at the time of breach as alleged in the pleading but at or after his adjudication in bankruptcy. In the first place, as we have already pointed out, plaintiff nowhere alleges that his bankruptcj'- caused the $1,500,000 damages which he seeks to recover. On the contrary, by plaintiff’s own allegations, the bankruptcy is not the catise of his loss, but like the loss, is the result of defendants’ alleged failure and refusal to perform under their contracts of insurance.

Generally speaking, a cause of action for breach of contract accrues at the time of the breach. (Abbott v. 76 Land c& Water Co. (1911) 161 Cal. 42, 47-49 [118 P. 425] ; Van Horne v. Treadwell (1913) 164 Cal. 620, 622-623 [130 P. 5] ; Coughlin v. Blair (1953) 41 Cal.2d 587, 598 [262 P.2d 305] ; see 4 Corbin on Contracts, § 946.) In the instant ease it is clear that the breach occurred prior to plaintiff’s bankruptcy. Ignoring these principles as well as his own allegations, plaintiff attempts to argue that he is in effect asserting a new cause of action which arose after and as a result of his becoming bankrupt. At best, plaintiff confuses a cause of action with damages resulting from a cause of action. “Compensatory damages do not constitute a plaintiff’s cause of action. His cause of action arises from the wrong inflicted on him, and for the infliction of that wrong he is allowed an award of such damages. Moreover, since the elements of consequential damage experienced by the. plaintiff as the result of a particular wrongful act relate back to the injury itself, they cannot form subsequent bases for new causes of action.” (14 Cal.Jur.2d, Damages, § 14, p. 644; as to damages for breach of contract see Abbott v. 76 Land & Water Co., supra, 161 Cal. 42, 47-49; Van Horne v. Treadwell, supra, 164 Cal. 620, 622-623; as to damages for tort see Wood v. Currey (1881) 57 Cal. 208, 210; Hawthorne v. Siegel (1891) 88 Cal. 159, 166 [25 P. 1114, 22 Am.St.Rep. 291].)

Particularly pertinent to the case before us is the reference of this court in Abbott to the “well settled principle that an entire claim arising either upon a contract or from a wrong cannot be divided and made the subject of several suits. In such a case it is no warrant for a second action that the party may not be able to actually prove in the first action all the items of the demand, or that all the damage may not then have been actually suffered. He is bound to prove in the first action not only such damage as has been actually suffered, but also such prospective damage by reason of the breach as he may be legally entitled to, for the judgment he recovers in such action will be a conclusive adjudication as to the total damage on account of the breach. (See generally on this subject 1 Sutherland on Damages, 3d ed., §§106, 108, 112, 113,120.) ” (161 Cal. at p. 48.)

Our attention has been invited to Wooten v. Central Mut. Ins. Co. (La.App. 1966) 182 So.2d 146, which deals with a claim for damages resulting from bankruptcy. There an insured under an automobile liability policy was forced into bankruptcy as a result of a judgment rendered against him in excess of the policy limits upon the insurer’s unreasonable refusal to settle a claim within policy limits. The trustee in bankruptcy, in addition to seeking recovery of the excessive portion of the judgment, alleged a separate cause of action claiming damages for impairment of the reputation and credit of the bankrupt caused by the bankruptcy. While permitting the trustee to recover the excessive portion of the judgment, the Louisiana court upheld • the' dismissal of the additional cause of action for impairment of the bankrupt’s credit and reputation since “any damage to [the bankrupt’s credit or reputation by reason of the bankruptcy was necessarily sustained after the petition was filed vesting only previously-owned assets in the trustee, . . .” (182 So.2d at p. 150.) Wooten thus suggests that a bankrupt may prosecute a cause based on damage to his reputation and credit resulting when he is forced into bankruptcy by the breach of a contractual duty owed him.⁷

On the other hand, in Patton v. Fidelity-Philadelphia Trust Co. (E.D.Pa. 1965) 246 F.Supp. 1015, where the complaint alleged that as a result of the breach of an agreement plaintiff was unable to pay his creditors who commenced bankruptcy proceedings “thereby injuring plaintiff’s credit and reputation,” the court held that the plaintiff-bankrupt could not recover since the gravamen of the action “arises upon a contract” and the cause was vested in the trustee under section 70, subdivision (a) (6) of the Bankruptcy Act (11 U.S.C.A. § 110, subd. (a) (6), citing Tamm v. Ford Motor Co. (8th Cir. 1935) 80 F.2d 723.

We cannot see how Wooten assists plaintiff since the nature of the claim there asserted is fundamentally different from that in the instant case. Plaintiff here makes no claim of damage to his reputation and credit or that his loss was caused by the bankruptcy but, as we have explained, claims only that it resulted from defendants’ refusal to perform under their contracts. Wooten concedes that such a claim would vest in the trustee as a cause of action “which could have been enforced by [the bankrupt] if he had not gone into bankruptcy.” (182 So.2d at p. 148.) Moreover, and quite apart from the foregoing fundamental grounds for distinguishing Wooten, we are more impressed with the rationale of Patton.

We therefore conclude that the fifth through ninth causes of action constitute “rights of action arising upon contracts” and passed to the trustee in bankruptcy under section 70 subdivision (a)(6) of the act. Although this disposes of the question before us, we additionally observe that these five causes of action fall within clause (5) of section 70 subdivision (a) since they are “rights of action, which prior to the filing of the petition he could by any means have transferred. . . .” (§70, subd. (a)(5); 11 U.S.C.A. §110, subd. (a) (5).) Upon this basis also they passed to the trustee.

It is settled that under the plain language of the above subsection of the statute “transferability is the determining factor” (Horton v. Moore (6th Cir. 1940) 110 F.2d 189, 191) and that generally speaking “the question of transferability is usually governed by state law, ...” (In re Goodson (S.D.Cal. 1962) 208 F.Supp. 837, 843, and cases there collected. ) It is manifest that the first five causes of action having arisen out of contract were rights of action which plaintiff could have transferred. (Civ. Code, §§953, 954;⁸ see Trubowitch v. Riverbank Canning Co. (1947) 30 Cal.2d 335, 339-340 [182 P.2d 182], and cases there collected; Farmland Irr. Co. v. Dopplmaier (1957) 48 Cal.2d 208, 222 [308 P.2d 732, 66 A.L.R.2d 590].)

Even if we were of the view (which we are not) that the rights here involved were not of a clear-cut contractual nature, we would nevertheless have no doubt about their transferability. We have said that the “statutes in this state clearly manifest a policy in favor of the free transferability of all types of property, including rights under contracts.” (Farmland Irr. Co. v. Dopplmaier, supra, 48 Cal.2d 208, 222.) As a general proposition it can be said 11 ‘ that the only causes or rights of action which are not transferable or assignable in any sense are those which are founded upon wrongs of a purely personal nature, such as slander, assault and battery, negligent personal injuries, criminal conversation, seduction, breach of marriage promise, malicious prosecution, and others of like nature. All other demands, claims and rights of action whatever are generally held to be transferable.’ ” (Wikstrom v. Yolo Fliers Club (1929) 206 Cal. 461, 463 [274 P. 959], quoting from 3 Street’s Foundations of Legal Liability; see also Rued v. Cooper (1893) 109 Cal. 682, 693 [34 P. 98] ; 6 Am.Jur.2d, Assignments, §29, p. 213.) The causes of action here engaging our attention cannot conceivably fall within any of the above categories designated as nontransferable.

We now proceed to examine the first four stated causes of action which are the common counts. As we have said, these are against each of the defendant insurers separately for monies “received and collected to the use and benefit of the plaintiff” on February 1, 1964. It will be recalled that this is the day on which plaintiff purchased the mote] and is substantially prior to the fire which occurred on February 19, 1964, and of course prior to the breach thereafter occurring as alleged in the last five causes of action. From a comparison of all nine counts, it is to be noted that the recovery sought in the first four is different in amount than that sought in the last five. There is good reason to believe that the first four counts seek the recovery of the premiums paid by plaintiff. (See fn. 2, ante.) But, all in all, the second amended complaint fails to disclose the relationship, if any, between the first four common counts and the last five causes of action. The common counts themselves contain no allegation of an adjudication in bankruptcy which, according to allegations elsewhere in the complaint, occurred after February 1,1964.

In Lambert v. Southern Counties Gas Co. (1959) 52 Cal.2d 347, 352 [340 P.2d 608], we observed that “a count sufficient within itself may not ordinarily be defeated b3r importing, from another count, an allegation to which the sufficient count makes no reference. [Citations.] ” We pointed out in that case that “There are exceptional instances where the allegations of one count have been considered in connection with the allegations of another count in ruling on a demurrer. Thus a common count may be joined with a count wherein all of the facts are specially pleaded; and if the count containing the specific facts is demurrable, so is the common count which is obviously based on the same set of facts. [Citations.] This rule with respect to pleadings involving a common count apparently is based ‘on the anomalous nature of the common count in our system of pleading.’ [Citation.] Similarly in an extension of this rule, a count in a complaint premised on detailed factual allegations in another count must stand or fall with the other count. [Citations.] ” (Pp. 352-353.)

In the instant case, the second amended complaint does not disclose allegations bringing it within either of the foregoing exceptions. There are present here, however, other exceptional circumstances which upon demurrer permit the first four causes of action to be evaluated in the light of the fact of plaintiff’s bankruptcy. It will be recalled that plaintiff’s original complaint contained an allegation as to his bankruptcy and that the demurrers interposed thereto were sustained upon the' ground, among others, that plaintiff lacked capacity to sue. In both his first and second amended complaints, plaintiff thereafter set forth the four common counts now under examination, thereby alleging causes of action ex contractu, which manifestly would have vested in the trustee by virtue of the bankruptcy allegations of the original complaint but which on their face failed to disclose the defect in plaintiff’s right thereto arising from his bankruptcy. Plaintiff cannot circumvent a demonstrated defect by such an expedient.

We have said that “Where a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation.” (Lamoreaux v. San Diego etc. Ry. Co. (1957) 48 Cal.2d 617, 623 [311 P.2d 1] ; see Cothran v. San Jose Water Works (1962) 58 Cal.2d 608, 615 [25 Cal.Rptr. 569, 375 P.2d 449] ; Hardy v. Admiral Oil Co. (1961) 56 Cal.2d 836, 840 [16 Cal.Rptr. 894, 366 P.2d 310] ; Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713, 716 [128 P.2d 522, 141 A.L.R. 1358].) “In such a case the original defect infects the subsequent pleading so as to render it vulnerable to a demurrer.” (Owens v. Traverso (1954) 125 Cal.App.2d 803, 804 [271 P.2d 164].) However, we have also made it clear that “a party should be allowed to correct a pleading by omitting an allegation which, it appears, was made as the result of mistake or inadvertence.” (Lamoreaux v. San Diego etc. Ry. Co., supra; see Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 386 [267 P.2d 257].)

In the case before us, it does not appear that the original complaint is verified. Nevertheless we feel that the principle underlying the above authorities is applicable here. As we have said, plaintiff alleged in his original complaint that he was adjudicated a bankrupt on July 24, 1964; this was a fact peculiarly within his own knowledge. In the common counts of both his first and his second amended complaints, plaintiff makes no reference to the fact of his bankruptcy. Nor does he offer in the second amended complaint now under review any explanation asserting that such prior allegation of bankruptcy “was made as the result of mistake or inadvertence” (Lamoreaux v. San Diego etc. Ry. Co., supra, 48 Cal.2d 617, 623) and explaining that its omission from the common counts is for the purpose of correcting an error. On the contrary, in the last five causes of action plaintiff repeats the allegation that he was adjudicated a bankrupt on July 24, 1964. In addition, the transcript of the oral argument on the demurrers discloses plaintiff’s unequivocal statement that the second amended complaint was as well pleaded as he could make it and that the trial judge, if he were inclined to sustain the demurrers, should do so without leave to amend. Indeed, for our present purposes the bankruptcy allegation appears as well established as if the original complaint had been verified. In view of the foregoing, we are satisfied that in examining the four common counts, we can consider plaintiff’s prior allegation that he was adjudicated a bankrupt on the date given. (See generally 2 Witkin, Cal. Procedure (1954) p. 1197; 2 Chadbourn, Grossman and Van Alstyne, Cal. Pleading (1961) pp. 360-361.) Thus examining them, we conclude that the four common counts were also vulnerable to the demurrers, since the causes of action therein set forth also become vested in the trustee in bankruptcy, and that plaintiff lacked the capacity to assert them.

Finally we take up plaintiff’s contention that his oral motion to disqualify the trial judge should have been granted. As previously noted, before his appointment to the bench and well within two years prior to the commencement of the action (Code Civ. Proe., § 170, subd. 4; see fn. 3, ante), the judge had been associated with the law firm representing American National which had been named a defendant in the original complaint but as to whom the action had been dismissed prior to the filing of the first amended complaint. (See fn. 1, ante.) The action was assigned to this judge for the first time after the first amended complaint had been filed and after the above dismissal of American National. He heard and ruled upon the demurrers to the first and second amended complaints but participated in no way in the action while American National was a party defendant. Plaintiff did not move for his disqualification until the hearing of the demurrers to the second amended complaint.

We need not decide the close question as to whether the trial judge was disqualified as a result of the above developments since even if it is assumed that he was, it clearly appears from the instant record that plaintiff waived the disqualification by failing to assert it in the manner required by the statute.

Section 170 of the Code of Civil Procedure provides that whenever a judge “who shall be disqualified under the provisions of this section” fails to declare his disqualification, any party to the action may file “a written statement objecting to the hearing of such matter or the trial of any issue of fact or law in such action or proceeding before such judge, and setting forth the fact or facts constituting the ground of the disqualification of such judge.

“. . . The statement of a party objecting to the judge on the ground of his disqualification, shall be presented at the earliest practicable opportunity, after his appearance and discovery of the facts constituting the ground of the judge’s disqualification, and in any event before the commencement of the hearing of any issue of fact in the action or proceeding before such judge. ’ ’ (Italics added.)⁹

Plaintiff did not comply with the foregoing procedure. As pointed out, his motion to disqualify was made orally at the time of the argument on the demurrers to the second amended complaint. No written statement as required by the statute was ever made. Nor does the record disclose that plaintiff voiced his objection “at the earliest practicable opportunüy ” after his counsel’s “discovery of the facts constituting the ground of the judge’s disqualification” especially when it does appear that the same judge heard and ruled upon demurrers to plaintiff’s first amended complaint two months before. Under the above circumstances, if the trial judge were disqualified, plaintiff waived the disqualification by his failure to urge it in the manner and at the time required by the statute. (Caminetti v. Pacific Mutual Life Ins. Co. (1943) 22 Cal.2d 386, 391-392 [139 P.2d 930] ; Sacramento etc. Drainage Dist. v. Jarvis (1959) 51 Cal.2d 799, 800-802 [336 P.2d 530] ; Mayo v. Beber (1960) 177 Cal.App.2d 544, 548-551 [2 Cal. Rptr. 405] ; Rio Vista Gas Assn. v. State of California (1961) 188 Cal.App.2d 555, 564 [10 Cal.Rptr. 559] ; People v. Pratt (1962) 205 Cal.App.2d 838, 842-843 [23 Cal.Rptr. 469].)

The attempted appeal from the denial of plaintiff’s motion to disqualify the trial judge is dismissed. The judgment is affirmed.

Traynor, C. J., McComb, J., and Burke, J., concurred.

1 Defendants and respondents are four insurance companies: Genera] Insurance Company of America, Industrial Indemnity Company, Insurance Company of North America, and National Union Fire Insurance Company. The action was commenced against said four companies and American National Insurance Company but pursuant to stipulation was dismissed as to the last named company prior to the filing of plaintiff’s first amended complaint.

Plaintiff also appeals from “the refusal of the Trial Judge to disqualify himself after Motion by plaintiff under Section 170.4’’ of the Code of Civil Procedure. Assuming that an order to such effect was made, it is nonappealable (Code Civ. Proe., § 963). Where the facts are not in conflict, prohibition is the proper remedy to test whether or not a judge is disqualified to act. (Briggs v. Superior Court (1932) 215 Cal. 336, 341-342 [10 P.2d 1003] ; see Chastain v. Superior Court (1936) 14 Cal.App.2d 97, 104 [57 P.2d 982] ; Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 693 [32 Cal.Rptr. 288].) While not appeal-able, nevertheless such order is reviewable upon appeal from a final judgment. (See Central Pac. Ry. Co. v. Superior Court (1931) 211 Cal. 706, 714 [296 P. 883] ; Oak Grove School Dist. v. City Title Ins. Co., supra.) We therefore review the order on the appeal from the judgment herein and dismiss the attempted appeal from the order itself.

2 The trial court in its minutes and in its formal ruling on the demurrers states that the common counts seek "the return of premiums for the various fire policies which are the basis of causes of action set forth in the fifth, sixth, seventh, eighth and ninth causes of action. ’ ’ The allegations of the last five causes of action set forth the amount of the premium for each policy and confirm the above statement.

3 Section 170, subdivision 4, disqualifies a judge “When, in the action or proceeding, or in any previous action or proceeding involving any oí the same issues, he has been attorney or counsel for any party; or when he has given advice to any party upon any matter involved in the action or proceeding; or when he has been retained or employed as attorney or counsel for any party within two years prior to the commencement of the action or proceeding. ’ ’

4 In sustaining the demurrers, the trial judge states in his V Ruling on Demurrers’’: “ [Plaintiff's] cause of action, if any there be, arises out of breach of contract of the various policies of insurance and have [sic] passed to the trustee unless plaintiff, as he says, can create a new specie off damage which does not pass to the trustee in bankruptcy. To do this he alleges malice, fraud, overreaching and other expletives, but he in no wise alleges any fact upon which these conclusions could "be drawn: He, therefore, has failed to allege a basis for his claim of damage. X consider his cause of action, if any, to be contractual in origin and specifically within the terms of Section 70 of the Bankruptcy Act, ...”

5 "Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event. ’ ’ (Italics added.) (Ins. Code, § 22; see Baumgarten v. Alliance Assur. Co. (C.C. N.D. Cal. 1908) 159 F. 275.)

6 In alleging performance, plaintiff may allege that he has “duly performed all the conditions on his part.” (Code Civ. Proc., § 457.)

7 In other instances it has been held that a cause sounding in tort for damage to the reputation or the good name and credit of a bankrupt, even when arising out of conduct prior to bankruptcy, has been held to be personal to the bankrupt and not to vest in the trustee. (Boudreau v. Chesley (1st Cir. 1943) 135 F.2d 623; Gurfein v. Howell (1925) 142 Va. 197 [128 S.E. 644].)

8 Civil Code section 953 provides: “A thing in action is a right to recover money or other personal property by a judicial proceeding. ’ ’

Civil Code section 954 provides in pertinent part: “A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner. ...”

9 Part of language added by 1927 amendment (Stats. 1927, eh. 744, § 1, p. 1403). This language appears in certain paragraphs between subdivisions 5 and 6.