
    Mary Louise Cilley, Respondent, v. The Preferred Accident Insurance Company of New York, Appellant.
    Fourth Department,
    November, 1905.
    Trial—when answer does not entitle defendant to open and close case.
    Where an accident insurance poli’cy provides for liability When the- injury is caused “solely by external, violent and accidental means,” and that the insurer shall not.be liable if the -intoxication of the insured contributes to the accident, the defendant is not entitled to open and close the trial under an answer alleging that the death of the insured “ did not result from bodily injury caused solely by external, violent and- accidental -means,” and that the insured was intoxicated at the time.' Such answer sets up more than an affirmative defense, as it is, in effect, a denial of facts plaintiff must show in-order. to recover under the terms of the policy.
    Williams and Nash, JJ., dissented.
    Appeal by the defendant, The Preferred Accident Insurance Company of New York, from a judgment of the Supreme Court in ' favor of the plaintiff, entered in the office of the clerk of the county of Erie on" the 27th day of January, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office -oh the 2d day of February, 1905, denying the defendant’s motion for a new., trial made upon the minutes. "
    
      Walter S. Hubbell, for' the appellant.
    
      Nathaniel W. Norton, for the respondent.
   Hiscock, J.:

We aré of the opinion that the judgment appealed from should' be affirmed'.

This action was brought upon a.policy of insurance, issued by the defendant, to recover the insurance payable at the death of one Brad J. Gilley, husband of the plaintiff, and which death is claimed to have been caused by his having been accidentally thrown from a wagon in which he was driving.

Practically the only controverted issue of fact upon the trial was whether the death of the insured resulted while he was intoxicated. The learned trial justice ruled that if it did, no recovery could be had, whether such intoxication in any manner contributed to the accident or not; that the terms of the policy were controlling upon this subject, and jirevented recovery if such intoxication existed.

Three reasons are assigned by the learned counsel for the appellant why the verdict of the jury and the judgment based thereon in favor of the plaintiff should be reversed. These are, first, that the verdict was against the weight of evidence upon the subject of intoxication; and, second, that errors were committed by the trial justice in excluding and admitting evidence over the objection of the defendant, and finally that the defendant was erroneously deprived of the right to open and close the trial to which it was entitled upon the condition of the pleadings.

We dismiss the first two claims for reversal without extended discpssion. While the defendant did produce much evidence to indicate that the deceased was intoxicated when he met with his death, there wte upon the other side a large volume of evidence leading to an opposite conclusion. Without attempting to determine which way we might have decided this issue, if submitted as an original question of fact, we think that the issue' was one fairly for a jury, and that there is not sufficient warrant for reversing their verdict as against the evidence, especially when the trial justice who heard and saw the witnesses has declined so to do.

So far as the exceptions are concerned we do Aot think that any of them presents any such serious error as calls for a reversal.

This brings us to the consideration of defendant’s contention that it should have been allowed to open and close the trial and which presents the interesting question upon this appeal. As already intimated, we think the contention is not sustained by the condition of the pleadings as they were presented at the trial.

It is, of course, elementary that if the defendant by its answer raised, llo issue upon which the plaintiff was required - to -present proof in- the first instance in order to succeed, it was entitled to such opening and closing, and, further, that if, being entitled to it, it was deprived thereof, an error was committed which calls for a reversal of the judgment.

We shall assume further for the purposes of this appeal in accord-' anee with the argument of appellant’s counsel that if the plaintiff in her .complaint alleged various facts which it was unnecessary for her to prove as part of her case in the first instance, the denial of such allegations would not raise issues giving plaintiff the affirmative upon the trial. -

The policy which is the basis of this action provided an insurance upon the insured “ against the effects of bodily injury caused solely ' by external, violent and accidental méans.”- It also provided that the insurance should not cover various exceptional cases. The complaint alleged that while said policy of insurance was still in force said Brad, J. Gilley was driving when his horse became frightened and gave a sudden start, causing the said Brad J. Gilley to be accidentally thrown from his carriage and instantly killed from tlie force of said fall,,and'that at the time of said accident the said Brad J,. Gilley was in possession of all of his senses- and was not intoxicated. Assuming that it was not necessary for the plaintiff to allege as part of her cause of action that'the insured “ was in possession of all of his faculties and not intoxicated ” in order to meet the exception specified in said policy, it still was necessary for her' to alleg'd in words or substance that the- death of the insured was caused “ solely

■ by external, violent and accidental means.” The allegation with reference to his being accidentally thrown from liis carriage and instantly killed from the force- of the fall was intended as, and probably was, a..sufficient allegation in effect to meet the case provided for by tiie policy. At least no claim- has been made that it was not equivalent to an allegation that the insured was killed solely by external, violent and accidental means.

The answer, after various other admissions, denials and allegations, contains the following: “ And this defendant alleges, upon information and bejieff. that the death of the said Brad J. Gilley did not result from bodily injury caused solely by-external, violent and accidental means y that the-death of the said Brad J. Cilley happened to him while he was intoxicated, and in consequence of his being, or having been, under the influence of intoxicants or narcotics, and that his said -death resulted, wholly or in part, from bodily infit'mity ccmsed by vntoxicatfng liquors taken by him, and that the death of the said Cilley resulted, either directly or indirectly, and wholly or in part, from voluntary and unnecessary exposure to danger.”

It is insisted upon the part of the defendant that it has denied none of the allegations material to the assertion of plaintiff’s right to recover in the first instance, but that it has set up an affirmative defense that Cilley was intoxicated when the accident happened, and,.therefore, has brought the case within one of the exceptions of the policy which prevents a recovery. While there are some admissions and allegations in earlier portions of the answer which sustain this claim, we think that some of those just quoted at length defeat it, and that these latter allegations amount to a denial of certain things which were necessary to plaintiff’s right of recovery.

We have the affirmative allegations that the death did not result solely from those external, violent and accidental means which alone permitted a recovery, and these allegations are further emphasized •and amplified by the assertion that the death resulted, wholly or in part, from bodily infirmity caused, by intoxicating liquors taken by the insured. We disregard entirely the connected allegations, simply to the effect that the insured was intoxicated when the accident happened, upon the theory that such allegation' stated an affirmative defense. But, so disregarding these allegations, we still have left the ones that the death did not result in the manner prescribed by the policy, but did result, in whole or in part, from other causes.

It is too well settled to require citation of authorities that an affirmative allegation to the effect that certain facts did not exist is equivalent to a denial that they did exist, and we think the allegations to which we have referred fairly denied the allegations in the complaint that the death of the insured came within the terms of the policy and presented an issue upon which it was necessary for the plaintiff to give evidence before she could recover.

If a defendant desires to admit a cause of action set forth in a complaint, and to secure the opening and closing of a trial by setting up an affirmative defense, he must make his admissions of the cause of action clear and Comprehensive, leaving nothing, no matter how inconsequential, to be proved by the plaintiff in order to establish a prima facie case. ■ (Lake Ontario Nat.. Bank v. Judson, 122 N. Y. 278, 284;Claflin v. Baere, 28 Hun, 204;Bender v. Terwilliger, 48 App. Div. 376.)

The pointed and decisive, inquiry in this'case must be whether, if plaintiff had simply produced her policy and offered a computation of interest, she would have been "entitled to a. verdict for the amount of the policy in thé absence of any opposing evidence by the defendant..

We think she would not have been so entitled. We think that the. trial’justice would have been compelled to rule upon the pleadings, as they ryere presented to him, that she was compelled to establish. by evidence that her husband had met his death in the manner prescribed by the policy in order to make the insurance payable.

In accordance with these views the judgment should be .affirmed.

■All concurred, except Williams and Nash, JJ., who'dissented.

Judgment and order affirmed, with costs.  