CHANGED AT WILL. A member of à mutual benefit society may change his beneficiary and name a new beneficiary whenever and as often as he pleases, provided he follows the steps required by the soci MODE OF CHANGE OF BENEFICIARY. that such negligence was the proximate cause | 2. INSURANCE 780-BENEFICIARY MAY BE of plaintiff's injuries. Appellant, who was well acquainted with the plaintiff, and his ability as a rider, and his familiarity with horses, believed, according to his testimony, already referred to, that plaintiff would sufficiently subdue the horse to allow the automo-ety's rules on the subject. bile to pass safely on some portion of the 3. INSURANCE 784(6)—WHO MAY OBJECT TO wide highway. Consequently, he proceeded with no thought of taking precautions to avoid the injury which resulted. This is borne out by the testimony to the effect that shortly after the accident Stowe stated to witness Gould, in effect, that he (Stowe) "was not going so fast, but was hitting it right along; that he saw the horse; that he looked like he was going to jump the fence, getting away from the other machine; and that he took a chance, and thought that he could slip by." [9] It appears that respondent, in order to avoid the motorcycle which frightened his horse, abandoned the macadamized portion of the road, and turned off to his left, which placed him upon what is sometimes denominated the "wrong side of the road." He was endeavoring to get the horse to cross the road to the right side as Stowe approached. Appellant contends that because of this fact respondent was on the left side of the road and was guilty of negligence per se, to wit, the violation of the statute governing the use of public highways (Stats. 1915, p. 397, supra), which contributed to his injury. There is no merit in this contention, for, as before stated, both parties had an equal right to the use of the road. Furtado v. Bird, supra. Respondent's position in the highway was governed by the actions of his frightened horse, which he was unable to control, as Stowe approached, of which Stowe had ample notice. This did not constitute a violation of the statute governing the use of the highway amounting to negligence per se, as claimed by appellants. The judgment is affirmed. If a mutual benefit society has waived a strict compliance with its own rules as to the method of making a change of beneficiary, and in pursuance of a request of an insured to change his beneficiary has issued a new certificate to him, the original beneficiary will not be heard to complain that the course laid down in the society's rules was not pursued. 4. INSURANCE 784(1) — IMPOSSIBILITY OF a LITERAL COMPLIANCE WITH RULES AS ΤΟ If it is beyond the power of a member of 784(2)-DEATH OF INSURED BEFORE COMPLETION OF CHANGE OF BENEFI- If a member of a mutual benefit society has pursued the course pointed out by the laws of the society to be followed in making a change of beneficiary, and has thus done everything devolving upon him to change the beneficiary, but before the new certificate was issued he dies, a court of equity will decree that to be done which ought to be done, and act as though the certificate had been issued. 6. INSURANCE 784(2)—DEATH OF MEMBEB BEFORE COMPLETION OF CHANGE OF BENEFICIARY. Where the rules of a mutual benefit society required a member desiring a change of bene We concur: KERRIGAN, J.; RICHARDS, J. ficiary to indorse a direction on his certificate, or a duplicate certificate, to obtain which he must make an affidavit and request that a duplicate policy issue, and subinit the same to the supreme directors, a member who lost his certificate and made out an affidavit to the effect that he wanted to change the beneficiary, and was told to first obtain a duplicate of his certificate, and he then sent in an affidavit, which entitled him to a duplicate policy, but before it was acted upon by the supreme directors he died, there was no change of beneficiary, nor had the member done all the things required of him to change the beneficiary, the things remaining to be done being more than mere ministerial acts on the part of the society. Appeal from Superior Court, Alameda County; Joseph S. Koford, Judge. Action by Maria Da Floria Barboza against Conselho Supremo Da Irmandade Do Divino Espirito Santo Do Estado Da California, (185 P.) in which Amelia Faria and others interplead. [provide that when the change of beneficiary From a judgment in favor of the interplead- has been properly indorsed upon the back of ing defendants, the plaintiff appeals. Af- the original or duplicate policy the same firmed. must be filed with a designated body for approval or rejection. J. Leonard Rose, of Oakland, for appellant. Rose & Silverstein, of Oakland, for respondents. KERRIGAN, J. This is an appeal by plaintiff from a judgment in favor of the interpleading defendants for the amount of a policy of fraternal insurance. The plaintiff is the surviving wife of Augusto J. Barboza, who died in the month of laws or constitution of a mutual benefit socie[1-5] It is settled law that where the byty provide a method of making a change of beneficiary a member in making a change must follow substantially the method pre171, 37 Pac. 865, 43 Am. St. Rep. 83. A memscribed. McLaughlin v. McLaughlin, 104 Cal. ber may change his beneficiary and name a new beneficiary whenever and as often as he pleases, provided he follows the steps reNovember, 1916, and the respondents are his three children, issue of a former marriage. To this rule of law there are three recognizquired by the society's rules on the subject. In the year 1905 Barboza became a member ed exceptions, namely: (1) If the society has of the fraternal society named in the title to waived a strict compliance with its own rules, this action, and there was issued to him at and in pursuance of a request of an insured that time a policy or certificate in which the to change his beneficiary has issued a new respondents were named as beneficiaries. In the month of October, 1916, he was ill, and not be heard to complain that the course certificate to him, the original beneficiary will had been so for some time, and, desiring to laid down in the society's rules was not purchange the beneficiaries named in said certif- sued. (2) If it is beyond the power of the inicate, which he had lost, he set about having sured to comply literally with the regulaissued to him a duplicate thereof, the im- tions, a competent court will treat the change mediate purpose of obtaining said duplicate being that he might indorse thereon the certificate is lost, or when it is in the possesas having been legally made. Thus when a desired change, such indorsement being the sion of a beneficiary who will not surrender first step prescribed by the rules of the society to be taken in making the change. In order to obtain this duplicate certificate he made and signed an affidavit upon the regular form provided by the society, but failed to fill in its blank spaces correctly. Instead of stating therein that his certificate was lost, and that therefore he desired to obtain a new one, he stated as a reason for making the affidavit that he desired to transfer the certificate to his wife. The secretary of the society returned this affidavit to Barboza as insufficient, stating with reference thereto, "He cannot change the beneficiaries in this document." He then made a second affidavit, which was accepted by the secretary and presented to the supreme directors, who met on November 13, 1916, in regular session. The deceased died on the same day, and notice of his death was given to the supreme directors while in session. After receiving became entitled to have issued to him a dusuch notice the supreme directors approved the second affidavit, and ordered that a duplicate certificate issue "to the within member applying for the same." The laws of the society provided that a member may change beneficiaries "by making the change on the back of the policy or a duplicate thereof," and that if the policy has been lost or destroyed, in order to obtain a duplicate he must make an affidavit for that purpose, and that before a duplicate policy can be issued the supreme directors "must give their permission and approval to the supreme secretary before the issuance of said duplicate policy, and direct said supreme secretary to issue a duplicate policy." The rules further it, and it is therefore impossible for the memforce the change. (3) If the insured has purber to comply with the rule, equity will ensued the course pointed out by the laws of the association, and has thus done everything devolving upon him to change the beneficiary, but before the new certificate issues he dies, a court of equity will decree that to be done which ought to have been done, and act as though the certificate had been issued. Supreme Lodge v. Price, 27 Cal. App. 607, 617, 150 Pac. 803. [6] In the case at bar the deceased had been married to the appellant for over a year and a half, during which time he had done nothing to effect a change of beneficiary until his last illness and just before his death, when he filed the affidavits already referred to. The second affidavit being sufficient, he plicate policy, upon which when received he could, if so minded at that time, have indorsed the desired change of beneficiary, and sent it to the supreme directors of the society for their action. But he undertook these necessary steps too late. Nothing in the record, we think, brings the case within any of the exceptions. It does not fall within the first of those heretofore enumerated, for the reason that there was no waiver by the society of compliance with its rules; nor within the second, for beyond evincing an intention to make the change he had done nothing, except the preliminary step of setting in motion the machinery to obtain a duplicate of his policy, upon the receipt of which it still would have FACTS IS IMPROPER. In an action for injuries to a passenger in an automobile in collision with defendant railroad's gasoline motorcar at a crossing, instruelooking the fact that plaintiff was a passenger, tion on contributory negligence entirely overwithout control over the car in which he rode, which was in charge of a competent chauffeur, held properly refused. been optional with him to take or not the [ 4. TRIAL 253(9) — INSTRUCTION IGNORING first step in the procedure prescribed for making the change, namely, indorsement on the policy of the new beneficiary. Nor does the case fall within the third exception to the general rule referred to, for the simple reason that the deceased had not done all the things required of him under the policy, leaving only ministerial acts to be done by the society. There is a wide distinction between a member doing all that he can up to the time of his death, and doing all the things required of him by the by-laws of the society. The author of Bacon on Benefit Societies, at section 48, says: In an action for injuries to an automobile passenger in collision with a railroad's gasoline motorcar at a crossing, evidence held sufficient to justify findings that defendant's motorcar was driven at an illegal rate of speed in excess of the eight miles an hour allowed by ordinance, and that the fact contributed to and brought about plaintiff's injury. 2. NEGLIGENCE 93(1)-CHAUFFEUR'S NEGLIGENCE NOT CHARGEABLE TO AUTOMOBILE PASSENGER. 5. NEGLIGENCE 54 — RAILROADS ←266 · JOINT LIABILITY FOR INJURY TO AUTOMO- gasoline car at a crossing, and its negligence 6. PLEADING OF 403(4) ALLEGATION RAILROAD'S NEGLIGENCE AIDED BY ANSWER. In an action against a railroad for injuries in a crossing accident to plaintiff passenger in an automobile, complaint as aided by the second answer held to charge defendant railroad as well as its employés with`negligence. 7. APPEAL AND ERROR 1170(3)—No REVERSAL FOR HARMLESS ERROR. Defendant having in its answer set forth all the matter omitted from the complaint, it cannot be heard to say that it has suffered any injury by reason of the trial court's ruling in not sustaining demurrer to the complaint, and, it not having suffered any injury, reversal for such cause on appeal is not warranted under Code Civ. Proc. § 475, or Const. art. 6, § 4. Appeal from Superior Court, Tehama County; John F. Ellison, Judge. Action by Gus C. Martin against the Southern Pacific Company. From judgment for plaintiff and order denying its motion for new trial, defendant appeals. Affirmed. J. T. Matlock, of Red Bluff, and George R. Freeman and Frank Freeman, both of Willows, for appellant. William A. Fish, of Red Bluff, and Walter H. Linforth, of San Francisco, for respondent. PLUMMER, Presiding Judge pro tem. On the 5th day of February, 1917, the plaintiff and one Clyde H. Vincent were traveling eastThe fact that the chauffeur, hired by plain- ward in an automobile on Oak street in the tiff, who had sole control and operation of the city of Red Bluff, county of Tehama, and, in automobile, may have erred in judging the so doing, reached a point on said street crossed movement of a gasoline car at a railroad cross-by the tracks of the defendant company. ing, does not charge plaintiff as his passenger with negligence contributing to collision between the automobile and the gasoline car; plaintiff having done what he was reasonably expected to do to safeguard his own person. 3. NEGLIGENCE 93(1)—AUTO DRIVER'S NEG LIGENCE NOT IMPUTABLE TO PASSENGERS. There a collision occurred with a gasoline motorcar being propelled northward on the tracks of said company, in which collision Vincent was killed and the plaintiff seriously injured. Plaintiff brought suit to recover for the losses incurred. The action was tried The rule relative to the contributory neg-before a jury. A verdict was rendered for ligence of drivers of automobiles and other ve- $7,500, and from the judgment entered therehicles does not apply to passengers therein. on, and the order denying defendant's motion (185 P.) for a new trial, defendant prosecutes this ap- is made as to the amount of the judgment peal. being excessive. It appears from the evidence that on the morning of the day in question the plaintiff, then being at the town of Corning, about 20 miles south of Red Bluff, engaged the services for hire of the said Clyde H. Vincent to transport him by automobile to the town of Red Bluff. The automobile was a five-passenger car, owned by the said Vincent, and was at all times on said trip operated and managed by him alone. The plaintiff occupied a seat alongside of and to the right of Vincent. It appears to have been a perfect spring morning, no wind and no rain. Oak street in the city of Red Bluff is in the heart of the city, and was a street with which the chauffeur Vincent was entirely familiar. The plaintiff had never crossed the railroad tracks at Oak street, knew nothing of the conditions thereof, and was not aware of the fact that a motorcar was at any time being operated on the lines of the defendant. It is strongly contended by the appellant that the evidence is insufficient to support the verdict of the jury, that its preponderance is in favor of the defendant, and that for this reason a new trial should be granted herein. Other points are made upon this appeal, which will be subsequently noticed, but which appear to be only minor reasons urged in support of this appeal. It is contended by the plaintiff and respondent that the motorcar was traveling at a very high rate of speed, from 25 to 35 miles an hour. On the part of the defendant it is contended that the car was running at only 8 miles per hour. It was admitted during the course of the trial that the legal rate of speed within the city limits of the city of Red Bluff was 8 miles per hour. It is also contended by the plaintiff that, by reason of the train of cars situated as aforesaid, the approach of the motorcar could not be observed at any considerable distance away. On the part of the defendant it is insisted that the motorcar could have been seen at a point 150 feet north of the intersection of the company's lines with Oak street from the point where plaintiff testifies the automobile was temporarily stopped to make observations of approaching trains, and that from this point the motorcar moved only at a speed of 8 miles per hour, and that, had the plaintiff used reasonable diligence to discover the approach of the motorcar, a sufficient opportunity was offered, after passing through the opening of the broken freight train, to stop the automobile before it reached the main line. On the part of the plaintiff it is contended that the freight train was sidetracked on a line parallel and next adjoining the main line on which the motorcar was operated. On the part of the appellant it is as strongly insisted that the freight train was side-tracked upon a line next westerly of the one claimed by the plaintiff, and that there was a vacant side-track, called track No. 3, between the switch occupied by the freight train and the track called the main line, on which the motor was traveling. Some 40 minutes preceding the collision in question, a live freight train had been sidetracked in the city of Red Bluff to the westward of the main line belonging to the defendant, and cut in two and separated for a distance of some 40 feet at Oak street, for the purpose of allowing pedestrians and vehicles in the neighborhood passage across the tracks belonging to the defendant company. As the plaintiff and Vincent were proceeding easterly along Oak street, they observed the freight train, constituting two sections, as aforesaid, one section being to the south and the other to the north of Oak street, the ends of the two sections projecting out over Oak street, leaving a trifle more than one-half of said street unobstructed. When within about 25 feet of the tracks of said company, the chauffeur Vincent brought the automobile to a temporary stop, and looked in both directions to determine whether there was any approaching trains; the plaintiff likewise, on his own behalf, making such observations as he found possible under the circumstances. The approach of the motorcar not being observed, and neither sound of whistle nor ringing of bell being heard, the automobile was sent for- If the contention of the plaintiff is true, ward by the chauffeur in second speed at a there would have been but a trifle over 3 feet rate of about 5 miles per hour, turning in its between the overhang of the freight cars on course slightly northward, where it appears the company's side track, and the motorcar to have suddenly increased its speed, until it traveling on the main line. Under these conreached the main line on which a gasoline ditions, it scarcely seems possible that the motorcar was moving northward, at which automobile could have been lifted and hurled point the collision occurred. The automobile northward, as the physical facts show to have was lifted some 3 feet from the ground, and been the case, but in all probability it would hurled in a northerly direction a trifle over have been taken up and practically ground 30 feet, and wedged under one of the cars of to pieces between the two cars. The testithe freight train in such a manner that it re-mony of the witnesses, and the photographs quired the service of the engine of the freight of the car introduced in evidence, show that train to pull the automobile from underneath the freight car. The occupants were rendered unconscious, and the plaintiff suffered severe injuries. It may be here stated that no point only the front portion of the automobile was seriously injured, the right front wheel, fender, etc., being knocked to pieces, the left fender being also torn and bent backward. The remainder of the car, which in width is and the ringing of a bell by the approaching greater than the distance would have been between the overhang of the motorcar and the freight car in such a position, escaped practically uninjured. The plaintiff and Vincent were also hurled free from the automobile, and lay stretched on the ground near some object not identified by the witnesses, but apparently similar in size to an appliance used for throwing a switch. The defendant maintains and operates, or did on the 5th day of February, 1917, maintain and operate six parallel tracks crossing Oak street, the main track on which the motorcar was running being track No. 4, counting from the west. motor. Upon this question the testimony is in sharp conflict, but from the fact that one part of the testimony is positive and the other is negative, the jury might very well have concluded that the whistle was sounded and that the bell was rung. Without the opportunity of observing the witnesses on the stand, it appears that the testimony predominates in favor of the contention that the whistle was sounded and the bell rung. But as the opportunity for judging the credibility of the witnesses cannot be had by the appellate court, it cannot be said that there was no substantial evidence to support the conclusion of the jury, assuming that their verdict turned wholly upon this point. But there is a further circumstance involved in this case, which doubtless caused the jury and justified them in coming to the conclusion which they reached, even though they may have believed that the contended-for signals were given. The complaint alleges that the motorcar was driven at an excessive rate of speed. As heretofore stated, the admitted legal rate of speed was 8 miles per hour. The engineer and fireman of the freight train testified that the motor passed the engine upon which they were standing at 8 miles per hour. The motorman in charge of the car says his speed after reaching the city limits was only 8 miles per hour. The conductor on the motorcar likewise testified to a speed of eight miles per hour. His testimony, however, was based upon his knowledge of the city ordinances, as illustrated by the following questions and answers: After a careful reading of the testimony by the respective witnesses, and consideration of the physical facts and circumstances attending the collision, it seems to us more probable that the freight train was in fact standing on the track called No. 2, being the second track, and not the first track west of the main line. Basing its argument upon the correctness of this contention, appellant claims that the plaintiff had ample opportunity to save himself from injury by the use of due diligence after crossing the track upon which the freight train was then standing; that, if necessary so to do, he could have leaped from the moving auto. The plaintiff testified, and it is also established by the witness himself, that a vehicle drawn by a horse preceded the auto through the opening made by the freight train and across the tracks of the company, at a distance of about 150 feet in advance of the auto. The driver of the vehicle testified that there was no flagman at the intersection, and no one was standing there to give warning of the approach of the motor. The plaintiff likewise testifies to the same state of facts. The brakeman of the freight train testifies that at this particular time he was engaged in adjusting a coupler upon a section of the The schedule made by the motor on the train immediately north of Oak street; that morning in question, from Corning to Red he stepped out and gave a signal to the occu- Bluff, shows that it was traveling in the neighpants of the motorcar to stop, but they passed borhood of 30 miles per hour. A passenger him without paying any heed. This brake- upon the motorcar stated that there was no man also testifies that the south section of perceptible diminution of speed upon reaching the freight train had been started northward, the city limits, and not until after the collision and had come to a stop. The fireman of the had occurred. Other disinterested witnesses freight train testifies that he had a violent testified that the motor was traveling at a stop signal from the brakeman at about the high rate of speed. It was admitted upon instant of the collision, which would indicate the trial that a motorcar traveling under that the brakeman was in error as to his giv-like conditions, at a rate of 25 miles per hour, ing signals or doing anything to attract the attention of the occupants of the automobile, and that the signals were given to stop his train after the occurrence of the accident. "Ques. When you reached the town limits you came along, you say, about 8 miles an hour? Ans. Yes. That is a city ordinance. Ques. You haven't any independent recollection of what rate you ran this morning, have you? Ans. No, sir." could be stopped in 100 feet. The motorman on the motor car testified that his brakes held for 65 feet after the collision; that his brakes then ceased to hold, and his car coasted A number of witnesses gave what is called before coming to a stop northward to a point "negative testimony," in that they testified some 400 feet from the scene of the accident. that they saw the approaching motorcar, but If it be true, as testified by the motorman, heard neither bell nor whistle. On the other that his brakes on his motorcar held for 65 hand, the engineer and fireman of the freight feet, and it be also true, as it was admitted train, and the motorman on the motorcar, to be true, and must be accepted to be true, |