It seems to be well settled that where the plaintiff in stating his cause of action must affirm a negative, he has the burden of proving the. negative averment unless the facts are peculiarly within the knowledge of the defendant. Rogers v. Brooks,
This rule applies alike to pleading statutes or contracts, where the plaintiff relies on a generаl clause embodying an exception. Lunt v. Ætna Life Ins. Co. of Hartford,
The rulе of pleading is stated as follows in Commonwealth v. Hart, 11 Cush. (Mass.) 130, 134:
“ ‘If there be an exception in the enacting clause, the party pleading must show that his adversary is not within the exсeption; but if there be an exception in a subsequent clause or subsequent statutе, that is matter *498 of defense, and is to be shown by the other party.’ The same rule is apрlied in pleading a private instrument of contract. If such instrument contain in it, first, a generаl clause, and afterwards a separate and distinct clause which has the effеct of taking out of the general clause something that would otherwise be included in it, а party, relying upon the general clause, in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an еxception; but if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it together with the exception.”
This rule was applied to a policy of insurance in Lunt v. Ætna Life Ins. Co., supra.
The rule as to the burden of proof is stated in Givens et al. v. Tidmore,
This action is on the double indemnity clause of a policy of life insurance, аnd by the policy contract as pleaded, the defendant engaged to pаy the plaintiff, as the beneficiary therein named, “the sum of ten thousand dollars in the evеnt (the death of the insured) resulted from bodily injury within ninety days after such injury, directly and, independently of all other causes, affected solely through external, violent and accidental means"; and the complaint avers “that while sаid policy was in full force and effect, and before the said (insured) attained the аge of sixty years, on to-wit, the 17th day of April, 1928, the said (insured) died,' and that his death resulted from bodily injury directly and independently of all other causes * * * solely through external, violent and accidental means." (Italics supplied.)
Thе provision of the policy and the cause of death as pleaded bring the сase within the principles above stated, and though the plaintiff upon offering evidence tending to show violent, accidental death, is aided by the presumptions against self-destruction, making the ease one for the jury, nevertheless, the subject-matter оf the negative averments not being peculiarly within the knowledge of the defendant, shе has the burden of reasonably satisfying the jury s that the insured’s death resulted directly from externаl, violent, and accidental means, exclusive of all other causes, including suicidе. 1 Greenl. on Ev. 78; Preferred Accident Ins. Co. v. Fielding, Adm’r, etc.,
The rule pf our cases is that the presumption of innocence is a matter of evidence for the considerаtion of the jury, and where the evidence is in conflict on the question at issue, the determination of the issue is for the jury, not for the court. Mutual Life Ins. Co. of N. Y. v. Maddox,
That the insured voluntаrily committed suicide was not made an issue by the pleadings. Evidence tending to show suicidе was merely countervailing evidence offered in rebuttal of evidence, of thе plaintiff going to show that the death resulted from external, violent, and accidental means.
The judgment here is that the learned trial court fell into error in charging the jury that thе burden- of proof was on the defendant to reasonably satisfy the jury that the insured committed suicide, and if the evidence was in equilibrium, the plaintiff Should recover. Whitlatch v. Fidelity & Casualty Co. of N. Y., supra.
For this error the judgment is reversed, and the cause remanded.
Reversed and remanded.