Opinion by
Plaintiff brought this action of assumpsit as the beneficiary of a life insurance policy issued by the defendant, and the plaintiff’s statement averred, inter aliа, the death of the insured, and attached a copy of the poliсy. The defendant denied liability upon the sole ground of exclusion clauses attached to the policy. This was an affirmative defense: 46 C. J. S. Insurancе §1297 (b), page 354. The facts upon which it was based were correctly set up as “New Matter”. The plaintiff filed a reply admitting these facts and the defendant moved for judgment, alleging that but a law issue existed. The court below dischаrged the rule and defendant appealed. The judgment will be affirmed, althоugh the reasons for discharging the rule were incorrect.
The exact purpose for which the pleading of “New Matter” is intended under §14 of the Practice Act of 1915 as amended (12 P.S. 431), is in pleading an affirmative defense. This affirmative defense is analogous to a plea of confession and avoidance. The aim of §14 of the Practice Act, and the required reрly, is to narrow *232 the factual issues. The same aim is manifested in Pa. E. C. P., Eule 1030, now in effect. The defendant’s rule for judgment was proper practice, and should have been disposed of on the basis of the facts actually or imрliedly admitted.
The judgment will be affirmed because the facts admitted were insufficient to determine the legal issue. The exclusion clauses are:
“. . . that death as hereinafter described is not a risk assumed . . . and in the event of such dеath the liability . . . shall be limited as hereinafter set forth [To the insured’s paid prеmiums and interest].
“(a) Death while the Insured is serving outside . . . of the United States, ... in the military or naval or air forces of any country at war, . . .
“(b) Death which results from service, training, travel, flight, . . . on . . . any species of aircraft; except death that results from travel as a fare-paying passenger on a licensed aircraft operated by a licensed passenger pilot on a scheduled passenger air service regularly offered between sрecified airports.”
As to the exclusion clause (a) the facts admitted do not show whether the insured met his death within or without the United States. Actually it was not shown whether this country was at war, but the courts will take judicial notice of thаt fact.
As to exclusion clause (b) the pleadings do not show whether or not the insured met his death “. . . as a fare-paying passenger on a licensеd aircraft operated by a licensed passenger pilot on a scheduled passenger air service regularly offered between specified airports.” It is only admitted that the insured, at the time of his death, was “riding in or operating an army plane.” The courts cannot take judicial notice that an army plane may not be operated on regular, sсheduled passenger flights, etc., nor that the insured may not have been a *233 fаre-paying passenger, even though a member of the Air Force. 1
We сannot determine whether the ambiguity or inconsistency exists in regard to the exclusion clauses, as contended by the appellee, until all the fаcts appear.
Order affirmed.
Notes
Near the close of the recent hostilities the public press contained articles that both the Army and Navy operаted scheduled plane flights between specified airports in the United Stаtes, as well as transoceanic flights; and that these scheduled opеrations were at first exclusively for personnel, usually high officers. Further, that suсh personnel passengers did not take up all the passenger spаce and that foreign dignitaries, army and navy contractors, and others, were permitted to use such planes, and that they paid the commercial fare for such flights, or reimbursed the operation in an equivalent amount.