| Mass. | Mar 15, 1856
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.
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»
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.
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.
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.