Deardorff v. Guaranty Mutual Accident Ass'n

Citations

• 89 Cal. 599
• 27 P. 158
• 1891 Cal. LEXIS 862

Syllabus

<p>Life Insurance—Mutual Accident Association—Assessment Plan— Pleading — Variance — Necessary Averments. —In an action upon a life insurance policy issued by a mutual accident association doing business under the mutual assessment plan, which policy makes the insured a full-rate member and provides that the sum insured is to be realized upon an assessment made in accordance with the by-laws, and that the association would pay the amount realized from one assessment upon all the members at the time of the accident, not exceeding the sum of five thousand dollars, the complaint must allege that an assessment was made and collected, and what was the amount thereof, or that it was demanded and refused. A complaint merely alleging an absolute insurance in the sum of five thousand dollars does not state the true cause of action.</p> <p>Id.—Rule of Pleading—Variance of Proof — Appeal — Reversal of Judgment. —The general rules of pleading apply to such an action, and the plaintiff, as in other cases, must show by proper averment his true cause of action, and the relief to which he is entitled; and when the answer and the evidence disclose that the plamtiff’s true e mse of action materially varies from the cause of action alleged, a judgment in his favor will be reversed upon appeal.</p>