Moore v. Susquehanna Mutual Fire Insurance , 196 Pa. 30 ( 1900 )

Opinion by

Mr. Justice Fell,

An affidavit of defense should contain a clear, orderly and specific statement of the facts relied on by the defendant to prevent judgment; merely general averments, or those which raise mixed questions of law and fact, are insufficient. Inferences or conclusions of law are for the court, and if it is desired that they should be drawn in favor of the defendant the court should be put in possession of the facts from which they are to be drawn. The rule upon the subject is stated,in Mitchell on Motions and Rules, p. 66, as follows: .“The affidavit must be a specific statement of facts. The words of the act of 1835 are that it must set forth ‘ the nature and character ’ of the defense. Under this it has been held that affidavits merely argumentative, or containing only inferences or conclusions of law, are bad. So if the averments are merely general, especially where they use words which raise mixed questions of law and fact, such as payment, warranty, surrender, etc., and allegations of fraud. In all these cases it is necessary to set out the facts, as e. g. when, how, and to whom the payment, surrender, etc., was made, the specific acts or representations which are alleged to constitute fraud,” etc.

Measured by this rule the affidavit of defense in this case is far from satisfactory. Whether the proofs of loss furnished were proper and sufficient was for the court, and if the defendant desired to raise any questions as to them it should have stated specifically wherein they were defective, or have annexed copies to the affidavit so that they might be examined by the court. The averment as to the time of service leaves it uncertain whether reference is made to the proofs said to be insufficient, or to others served at a later date whose sufficiency is not challenged. All of the averments on the subject of the proofs of loss are defective in stating conclusions of law instead of facts, or in stating facts in an equivocal if not an evasive manner.

The by-law in relation to excessive insurance was a regulation of the company for the management of its business, and the mere fact that property was insured for more than two thirds of its value did not affect the validity of the policy unless the overinsurance was procured by means of some wrongful act on the part of the plaintiff.

The averments in the fourth paragraph of the affidavit of defense were, however, sufficient to prevent judgment. It was a part of the contract of insurance that the entire policy should be void “if the interest of the insured be other than unconditional and sole ownership; or if the subject of the insurance be a building on ground not owned by the insured in fee simple.” The averments are that at the time the policy issued the house and barn insured were not unconditionally and solely owned by the insured, and that they were not on ground owned by him in fee simple. It would have been better practice to have stated the facts as to the ownership of the buildings and land upon which the defendant relied with at least sufficient fullness and particularity to have made it clear that this part of the defense was not based on legal conclusions, and on this ground a supplemental affidavit might have been allowed by the court. But these were distinct averments of fact, which if established by proof would defeat a recovery on the policy, and the defendant was not bound to set out his evidence or apprise the plaintiff of his means of proof. In Bakes v. Reese, 150 Pa. 44, relied on by the plaintiff, the action was by the heirs to recover rent of real estate of which their father died seized, and the defendant averred that the plaintiffs were not all the heirs. This averment was held to be in effect a plea in abatement, and defective in not giving the plaintiffs a better writ. The defense was as to the parties plaintiff. Here the defense was not in the nature of a plea in' abatement. It was in bar of the action.

The judgment is reversed with a procedendo.