Hyatt v. Humbird Lumber Co.

RICE, J. This case in principle is identical with the ease of Hyatt v. Blackwell Humber Co., ante, p. 452 173 Pac. 1083, the only essential difference being that the case was disposed of on demurrer to the complaint, the demurrer having been sustained and a judgment thereupon entered dismissing the action. The contention was that the complaint failed to state a cause of action and that it was uncertain, in that it did not allege that the contracts of insurance complained of were entered into and were to be performed within the state. The demurrer was properly sustained. In view of the holding in the case of Hyatt v. Blackwell Lumber Co., supra, the plaintiff could not recover in case the contracts of insurance were made and were to be performed outside of the state. So far as we are aware there is no presumption as to the place where a contract of insurance is made or to be performed. It is incumbent upon the plaintiff to allege all the ultimate facts necessary to entitle him to recover under a valid law. For the reason suggested in the former case, W. R. Hyatt is also substituted as appellant in this case. The judgment is affirmed. No costs awarded. Budge, C. J., and Morgan, J., concur.