38 N.Y.S. 854 | N.Y. App. Div. | 1896
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
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
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.