
    St. Louis Tow Company, Respondent vs. The Orphans Benefit Insurance Company of St. Louis, Appellant.
    1. Practice civil — Trials—Pleading—Confession and avoidance — Burden of proof. The burden of proof is on a defendant who in his answer confesses and avoids the allegations of the petition.
    
      Hppeal from Wayne Circuit Court.
    
    
      Stewart <§’ Wieting, for Appellant.
    No cause of action was stated in the petition.
    
      Henry D. Laughlin, for Eespondent.
    The respondent was entitled to the instruction asked for.
   Wagner, Judge,

delivered the opinion of the court.

The plaintiff, as assignee of Hackett & Ackle, commenced this action to recover the amount of a policy of insurance, made by the defendant on a quantity of cement, which was being transported from the Ohio River to St. Louis. The cement was greatly injured, while in the process of being loaded on a barge lying at New Albany. The answer of the defendant admitted the facts set forth in the petition, but alleged new and independent matters of defense. To these defences there was a replication filed. At the trial, as the defendant took upon itself the onus or burden of proof, it claimed the right to open and close the case. This right was awarded to it by tbe Court.

Upon tlie conclusion of the testimony the plaintiff asked the Court to instruct the Jury; that it was admitted in the case, that the plaintiff had a prima facie right to recover, and that the verdict ought to he for the plaintiff, for the amount claimed, unless defendant had made out some legal defense, to the satisfaction of the jury.

This instruction the Court refused, and then in its second instruction, given at defendants instance, it cast the burden on the plaintiff of proving, that the affirmative allegations set up in the answer, were not true. This was really its effect. The verdict was for the defendant. The case was then taken to General Term, where the ruling at Special Term was reversed, and defendant ajipealed.

The ruling of tlie Court at Special Term was unquestionably wrong.

When the defendant admitted the canse of action as stated in the petition, by not denying any of its allegations, it confessed that the plaintiff had a good case, and it undertook to avoid it, by making averments which would destroy th oprima facie case set out in the petition. These averments it devolved on defendant to prove. It assumed the attitude of a plaintiff, opened and closed the case, and undertook to establish the independent matter set up. Unless it satisfied the jury by its proof that its allegations were true, tbe plaintiff was certainly entitled to a verdict. After tbe plaintiff’s case was admitted by tbe pleadings, tbe Court at Special Term still required it to prove up its case, and to show further' that it had done nothing that would impair or vitiate the policy.

Tlie Judgment at General Term ought to be affirmed.

The other Judges concur.  