
    Michael Mulry vs. Mohawk Valley Insurance Company
    Under St. 1852, c. 812, a misrepresentation of the assured, not specified in the defendants' answer, cannot he relied on to show a policy of insurance to be void, and so defeat an action thereon, although first disclosed by the plaintiff’s evidence.
    The evidence of experts is not competent to show that the risk of fire is greater in unoccupied buildings.
   Bigelow, J.

The defendants in this case relied at the trial upon two grounds of defence to the claim of the plaintiff under his policy. One was, that the premises, after the policy was made, and at the time of the fire, were used for the sale of spirituous liquors, contrary to an express stipulation on the part of the plaintiff; and that the policy was thereby rendered void. This ground of defence was fully stated in the answer of the defendants, and the question of fact arising thereon was submitted to the jury, who returned their verdict on this point in favor of the plaintiff.

The other ground of defence was that spirituous liquors were kept and sold on the premises by the plaintiff at the time the policy was made and issued, and that this use of the premise?, was not stated by the plaintiff in his application for insurance, as required by the conditions annexed to the policy, and that for this reason, the plaintiff could not recover. This ground of defence was not set out by the defendants in their answer. It appeared however in the course of the trial, on the cross" examination of the plaintiff’s witnesses, that the premises were so used by the plaintiff at the time of making his application and at the date of his policy. Upon this state of facts, which was not controverted by the plaintiff at the trial, the defendants contended, and asked the court to rule, that the plaintiff, upon a just construction of the policy, and of the terms and conditions annexed to it, could not recover. The judge who presided at the trial refused so to rule, and it is upon this refusal, that the case now comes before the whole court.

We have not found it necessary to determine whether the facts disclosed by the plaintiff’s witnesses, as to the use of the premises at the time the policy was issued, would render it void; because we are of opinion that this defence is not open to the defendants, inasmuch as it was not set forth in their answer. Formerly, by pleading the general issue, every thing was open to proof, which went to show that the plaintiff’s claim was invalid through fraud or illegality, or was in its inception void in law. Hulet v. Stratton, 5 Cush. 539. Dixie v. Abbott, 7 Cush. 610. But the practice act, St. 1852, c. 312, by abolishing the general issue, and substituting therefor an answer which is required to contain precise, certain and substantial averments and denials, and providing that every matter averred in the declaration, and not denied by the answer, shall be deemed to be admitted, effected a material change, not only in the forms of pleading, but also in the mode of making up issues of fact be» tween the parties. There being now no general form of denying the plaintiff’s right to recover, the defendant is compelled by §§ 14, 26, to deny every substantive fact alleged by the plaintiff in his declaration, or declare his ignorance thereof and leave the plaintiff to his proof. These provisions enable the defendant, by an answer denying the plaintiff’s allegations, to put in issue only such matters as are properly averred in the plaintiff’s declaration. The plaintiff, by § 2, is required to make no allegations except those which he is bound by law to prove. Therefore the defendant, by merely answering the allegations in the plaintiff’s declaration, can try only such questions of fact as are necessary to sustain the plaintiff’s case. He cannot thus put in issue matters which go to defeat or avoid it; and it is accordingly provided by § .18, that the answer shall set forth in clear and precise terms each substantive fact intended to be relied on in avoidance of the action; by which are intended to be embraced all matters which cannot be proved under the denial of the allegations in the plaintiff’s declaration. It follows, as a necessary consequence, that whenever a defendant intends to res-t his defence upon any fact which is not included in the allegations necessary to the support of the plaintiff’s case, he must set it out in clear and precise terms in his answer; and as the plaintiff is not bound to aver any thing which tends to defeat his action, or which shows that his claim is illegal or void in its inception or otherwise, all such matters must be set out and averred in the answer under the eighteenth section of the practice act. This constitutes the main difference between the system of pleading established by the practice act, and that which was previously in force. Thus understood and administered, it is plain that the practice act is intended to bring the parties to a cause by their pleadings to clear and precise issues of fact, and all immaterial and unnecessary averments are wholly excluded.

This decision is but an extension and application, to othei forms of declaration, of the principle of construction already laid down by this court in actions on the common counts or on an account annexed. Granger v. Ilsley, 2 Gray, 521.

Applying this construction of the statute to the answer of the defendants in the case at bar, it is manifest that the defence relied upon was not open to the defendants. Proof that the policy was void in its inception, by reason of misrepresentation or concealment on the part of the plaintiff of material facts, was clearly in avoidance of the action. It did not come within any of the allegations contained in the plaintiff’s declaration. He was not bound to aver or prove any such fact. It was for the defendants to allege and prove it as a distinct substantive ground of defence.

It was urged at the argument, that it was always competent for the defendant to take advantage of any matter in defence to an action, which was disclosed by the plaintiff’s own testimony. This was true to a certain extent, when the general issue was pleaded, because under it all matters which tended to prove the original invalidity of the plaintiff’s claim were open and competent to be proved. But, for the reasons already given, it is otherwise under the system of pleading established by the practice act. Nothing is open and competent to be proved, except what is comprehended in the distinct averments and denials of the parties. All other matters are irrelevant to the issue. Strictly speaking, therefore, all the evidence drawn out of the plaintiff’s witnesses on cross-examination, which tended to show that spirituous liquors were kept and sold on the premises at the time of making the policy, was incompetent and irrelevant, because no such issue was before the jury on the pleadings. It might therefore have been properly excluded; but, being in, it cannot be used to defeat the plaintiff’s claim on a ground not set out in the answer.

Of course, it is always in the power of the court, in the exercise of its discretion, to allow amendments to the answer of a defendant, where facts material to the defence are disclosed by the testimony of the plaintiff, which, by the use of due diligence, could not have been known to the defendant so that he could avail himself of them in his answer. But in the case at bar no such surprise was shown as would warrant the allowance of an amendment to the answer; and none was in fact moved for at the trial.

J. H. Wakefield, for the defendants.

W. Gaston & J. W. May, for the plaintiff.

The ruling of the court, rejecting the evidence of certain officers and agents of insurance companies in Boston, offered as experts “ to prove that the failure of the applicant and his men, or any one else, to occupy the said building for lodging, increased the risk and was material thereto,” was clearly right. The facts proposed to be proved by them were of a character equally within the knowledge of the jury as of the witnesses, and were not such as to render the opinions of witnesses competent. The case at bar is widely different from that of Webber v. Eastern Railroad, 2 Met. 147, cited by the defendants. There the fact to be proved was that insurance companies charged an increased premium on a certain class of risks. This fact could be proved satisfactorily by those only, who were so familiar with the business of insurance as to be able to testify on the points. But the facts in the present case were within the common experience of all mankind.

Exceptions overruled.  