delivered tlie opinion of the court.
The court below sustained a demurrer to a complaint in an action on an accident insurance policy, and dismissed the action. The theory of the demurrer and of the district judge was that the complaint did not state facts sufficient to constitute a cause of action iu that it did not disclose any contractual relation between plaintiff and defendant.
Plaintiff alleged tbat while driving a certain automobile, the property of Doña María Isabel Landrón, he struck and injured Emma Sauabria, a child of six years; that the owner of the ear promptly notified defendant of the accident and gave a detailed- account thereof in the form of a written *688statement signed by plaintiff; that the automobile driven by plaintiff at the time of the accident was insured by defendant to the amount of five thousand dollars against all damage and loss that might be occasioned by the use of said vehicle, arising out of personal injuries or death resulting therefrom and sustained by one person only, during the life of the policy; and that according to the terms of the said policy the insurance evidenced thereby would inure to the benefit of any person who might be riding in the said automobile as well as to that of any person, firm or corporation responsible for the operation thereof.
The complaint also showed that the child Emma Sanabria had obtained a judgment against plaintiff herein for damages in the sum of five thousand dollars and costs. The demurrer as submitted and disposed of in the court below was not addressed to this aspect of the cause of action.
In July of last year the judgment of dismissal was affirmed by a divided court. In November this court of its own motion ordered a rehearing and the case was re-argued in December.
The only question not raised in the court below and suggested in the original brief for appellee is that the complaint contains no averment that the policy was in force at the time of the accident. The accident is alleged to have occurred on November 28, 1926. Plaintiff also alleges that the policy was issued to run from January 8,1926 at 12 P. M. until the same hour on January 8, 1927, and that it had not been canceled nor terminated during such period, nor theretofore, nor at the time of the accident nor thereafter. It is a fair inference from this averment, that the policy was in force at the time of the accident.
The policy in question is not before us, and the facts alleged in the complaint are admitted by the demurrer. It may be that the contract of- insurance described in the complaint is unusual, but it is not invalid. (See sections 1222 and *6891224 of the Civil Code and section 51 of the Code of Civil Procedure.)
At the present stage of the proceedings the cases of Vélez v. Martínez et al., 35 P.R.R. 506 and Castillo v. Caribbean Casualty Company, 37 P.R.R. 379, are not in point.
The only donbt that remains in the mind of any member of the majority as now constituted goes to a question not raised by appellee in this court nor in the conrt below. This court, of course, has the right of its own initiative to challenge the sufficiency of the complaint at any time. Ordinarily, however, it is preferable that snch question be left open until passed upon by a district court or at least until developed by the argument of counsel. In the case at bar we assume that the insurance company, when it based its demurrer on the specific ground already indicated, intended to waive for the time being other possible objections to the sufficiency of the complaint.
The judgment appealed from will be reversed, the demurrer overruled and the case remanded for further proceedings not inconsistent herewith.