Poole v. Massachusetts Mutual Accident Ass'n

Accident insurance — Action on policy — Defenses—Pleas— ■ Motion to Me. A defense which must be specially pleaded cannot, without the proper plea, be insisted upon, though it appears from the evidence necessarily introduced. In an action on an accident policy, under No. 121, Acts of 1896, the defense that the insured did not exercise due diligence for his personal safety and protection as required by the policy, cannot be made available unless specially pleaded. Permission to file a plea in this Court will only be granted when it is certain that the case has been tried as .it would have been if the plea had been in.

General assumpsit on an accident insurance policy. Pleas, the general issue and payment. - Trial by jury at the June Term, 1901, Caledonia County, Tyler, J., presiding. Judgment for the defendant on verdict ordered. The plaintiff excepted. It was error to- order a verdict for the defendant on the ground that the plaintiff was not in the exercise of due diligence. An injury through violent and accidental means having been proved, the burden was on the defendant to show want of due diligence. Freeman v. Travellers Ins. Co., 144 Mass. 572; Badenfield v. Mass. Acc. Asso., 154 Mass. 77; Keene v. N. B. Acc. Asso., 161 Mass. 149. This defense could not be made under the defendant’s plea of the general issue. The provisions in regard to due diligence was one of the conditions and provisos of the policy. Commonwealth v. Hart, 11 Cush. 130; Freeman v. Travellers Ins. Co., supra; Pedmont Ins. Co. v. Bwing, 92 U. S. 377; No. 121, Acts of 1896. The Court cannot say, as matter of law, that the plaintiff was not using all due diligence for his personal safety and protection. Keene v. Association, supra. The tender which the defendant made to the plaintiff was in law an admission of the legality of the plaintiff’s claim, denying only the amount due, and so with the evidence of tender admitted, the Court was bound to submit to the jury the question of the amount due. Woodward v. Cutter, 33 Vt. 49. It was certainly error to order a verdict for the defendant, because the policy provides that in case the injury is caused by or contributed to by the negligence of the insured the indemnity shall be one-fifth of that named in the policy. So, conceding that he was not in exercise of due care, the plaintiff would be entitled to- recover one-fifth of the indemnity specified. A stipulation in the policy required the plaintiff to use due diligence for his personal safety and protection;' so whatever would constitute contributory negligence in an action of tort may be set up as a defense to the action on this contract. Scm-telle v. Ry. Pass. Assur. Co., 15 Blatch. 216; Tuttle v. Ins. Co., 134 Mass. 175; Ins. Co. v. Lmgden, 60 Arkansas, 381. The case shows that the plaintiff was not in the exercise of due care, and the Court was right in ordering a verdict for the defendant. Smith v. Accident Association, 67 N. W. 990; Pollis v. Accident Association, 62 N. W. 907; Accident Associations. Taylor, 71 Ill. App. 132; Bean v. Assur. Corp., 50 Mo. App. 459; Cornish v. Ins. Co., 23 Q. B. 453; Willard v. Association, 169 Mass. 288; Worthington v. Railroad Co. 64 Vt. 107.