
    John J. Keeffe, Respondent, v. The National Accident Society of New York, Appellant.
    
      Insurance — accident policy, void for overexertion, etc.—riding in a bicycle race presents a question of fact — a defense of limitation of time to bring an action, not expressed so as to be covered by the wording, of a policy, is not mailable— an agreement to arbitrate is void.
    
    In an action brought to recover upon a so-called accident policy issued by the defendant, it appeared that the policy contained a provision that it should “ not extend to or cover * * * injury resulting from * * * voluntary over-' - exertion, either voluntary or unnecessary exposure to danger or to obvious risk of injury,” and that the plaintiff was injured while riding in a bicycle race.
    
      Held, that the court properly submitted to the jury the question whether the plaintiff was injured by his voluntarily or unnecessarily exposing himself to danger or to the obvious risk Of injury, and that it could not be held, as a matter of law, that either of these propositions was absolutely established.
    It also appeared that one of the defenses alleged in the answer was that no action should be brought on the policy, unless commenced within one year from the date of the accident, while the policy in fact provided that an action must be begun within six months from the date when the defendant received proofs of the injury. The action was really begun more than a year after the accident.
    
      Held, that the defense pleaded was not the defense which was permissible under the words of the policy, and that, consequently, the defense was not available to the defendant; ”
    That a provision contained in the policy, that all differences arising under the contract must be arbitrated at the request of the insurer, was a provision which would oust the court of all jurisdiction, and which was not, therefore, a bar to the action.
    
      Appeal by the defendant, The National Accident Society 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 Warren on the 10th day of July, 1895, upon the verdict of a jury rendered after a trial at the Warren Circuit, and also from an order entered in said clerk’s office on the 10th day of July, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      Stephen W. Collins, for the appellant.
    
      D. F. Keeffe and A. Armstrong, Jr., for the respondent.
   Parker, P. J.:

This action is brought upon an “ accident policy ” issued by the defendant to the plaintiff, and is to recover for injuries sustained while riding in a bicycle race.

The following provision was contained in the policy: “ This insurance shall not extend to or cover * * * injury resulting from * * * voluntary over-exertion, either voluntary or unnecessary exposure to danger, or to obvious risk of injury.”

The defendant claimed that an injury sustained while riding in such a race was within the above exception, and moved for a non-suit on that, ground. The court denied the motion, and on that subject submitted to the jury the question whether the plaintiff was injured by his voluntarily or unnecessarily exposing himself to danger, or to the obvious risk of injury. This was, we think, a correct disposition of the question raised by the defendant.

It cannot be said, as a matter of law that the plaintiff was overexerting himself, n.ar that he. voluntarily exposed himself to danger by entering into the race. Different, and equally intelligent and unbiased men, might fairly differ in opinion as to whether or not, by taking part in such a race any risk of injury was necessarily incurred, and we think the court was right in leaving the decision of that question to the jury. (Hart v. H. R. Bridge Co., 80 N. Y. 622; Salt Springs Nat. Bank v. Sloan, 135 id. 371-383.)

A motion for a nonsuit was also made upon the further ground “that the proof shows that the action was not brought within the time limited by the policy during which an action could be brought.” The answer set up, as one of the defenses relied upon, that the policy provided that “ no suit or proceeding at law or in equity shall be brought to recover any sum hereby provided for, unless the same is commenced within one year from, the date of the accident.” It also averred that the accident occurred on July 14, 1893, and that the action was not commenced until September 10,1894, u nearly two months after the expiration of one year after said July 14, 1893, the time.limited by said certificate [within] which an action could be brought thereunder.”

But no such provision is contained in the policy. It is there provided that no recovery can be had under it, unless action is begun within six months from the date when the society .shall have received proofs of the injury, etc., a very different provision from the one pleaded. We are of the opinion that the defendant could not avail itself of the defense that the action was not brought within the time limited by the contract, unless it was pleaded, and that: the answer did not plead such,limitation.

It set,up a.claim that could not be sustained by the contract, and one calculated to mislead rather than to inform plaintiff of the defense upon which the motion for nonsuit was based. • Moreover, it does not appear that any proof was offered by defendant, or that any was made under this defense.

The date when the proofs of injury were received is conceded, but there is no concession, nor proof offered, nor fact called to the attention of court or counsel, “ indicating when the' action was commenced.” It is true that the summons appears to have been dated September 1,1894, and if it be conceded that such fact might, be referred' to as proof that the .action was'.not commenced before that daté, yet we are not at liberty to,assume that it was before the court on the trial, nor treat it as in evidence, now without an amendment of the defendant’s pleading. At the time the motion for non-suit was made no proof had been offered, and none could have been received, under defendant’s answer, as to when the action was commenced, except , upon special application to the court and an amendment of the pleading. Eo such application was made, arid the question' as to when the action was , commenced does not seem to have been referred to. We conclude, therefore, that in this respect the motion, was properly denied. The claim'that plaintiff could not recover because he had refused to submit'to arbitration under the provisions of the policy is not pressed upon this appeal .and evidently could not be sustained. If such provision amounts to anything, it is to the effect that all differences arising under the contract must be arbitrated ’ at the.- request of the insurer. Sucli a provision would oust the. court of all jurisdiction, and, therefore, is not valid as a bar to the action. (Prest., etc., D. & H. C. Co., 50 N. Y. 266; Seward v. City of Rochester, 109 id. 164.)

We conclude that no error was committed upon this trial, and that the judgment should be affirmed. ■

All concurred, except Landon, J., not sitting ; Herriók, J., concurred in result.

Judgment and order affirmed, with costs.  