Therefore, if there was any provision in the policy which limited the amount of coverage it was the duty of appellant to plead it affirmatively. Stucker v. Hartford Accident and Indemnity Company. 220 Ark. 475. 248 S.W.2d 383 and Bankers Insurance Company. v. Hemby. 217 Ark. 749, 233 S.W.2d 637."
This allegation put appellee to his proof of appellant's liability. Stucker v. Hartford Accident Indemnity Company, 220 Ark. 475, 248 S.W.2d 383. Cases relied upon by appellant to bring Karen within the terms of the policy as an insured are not applicable when we apply the plain, unequivocal, unambiguous definition of the word "occupying" given in the policy.
In Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S.W.2d 294 (1966), we said: "In an action upon an insurance policy a general denial merely puts the plaintiff to his proof; an affirmative defense, such as an exception in the policy, must be specially pleaded." See, also, Stucker v. Hartford Accident Indemnity Co., 220 Ark. 475, 248 S.W.2d 383 (1952). In our view, it was necessary for the appellant to specifically invoke the "cooperation" clause in the trial of the case.
In an action upon an insurance policy a general denial merely puts the plaintiff to his proof; an affirmative defense, such as an exception in the policy, must be specially pleaded. Stucker v. Hartford Acc. Ind. Co., 220 Ark. 475, 248 S.W.2d 383 (1952). Hence in the case at bar the defendant's general denial merely put in issue the allegations of the complaint.
Therefore, if there was any provision in the policy which limited the amount of coverage it was the duty of appellant to plead it affirmatively. Stucker v. Hartford Accident and Indemnity Company, 220 Ark. 475, 248 S.W.2d 383 and Bankers Insurance Company v. Hemby, 217 Ark. 749, 233 S.W.2d 637. 2. It is argued by appellant "the burden of proving the policy provisions covering the manner of determination of the extent of the damages" is on appellee.
Several cases are then cited in support of this holding. See also Stucker v. Hartford Accident and Indemnity Company, 220 Ark. 475, 248 S.W.2d 383, and cases cited therein. Here, appellant company only filed a general denial, and, in so doing, waived any possible defense created by the exception clause.
The restrictions upon the insurer's liability are contained in a subsequent schedule and constitute exceptions that must be pleaded affirmatively. Stucker v. Hartford Acc. Ind. Co., 220 Ark. 475, 248 S.W.2d 383. These defenses were not mentioned in any way until after the verdict. As we said in a similar situation in Greenwich Ins. Co. v. State, 74 Ark. 72, 84 S.W. 1025: "If the appellant is right in its contention, then it had a defense, pro tanto, to the suit, and a failure to plead it waived it. This court has frequently decided that when a battery is masked in the trial court, it cannot be opened in this court."
The appellant's reliance upon a clause requiring a disabled insured to be regularly attended by a physician is met by the complete absence of proof that the appellee was not so attended. This general provision, appearing in the latter part of the policy, constitutes an exception to the basic insuring clauses and therefore presents at most an affirmative defense that must be pleaded and proved. Stucker v. Hartford Acc. Ind. Co., 220 Ark. 475, 248 S.W.2d 383. Here the defense was pleaded but not proved. Neither is there sufficient proof to establish the contention that the appellee accepted a check in full settlement of her claim.
Appellant Stucker filed suit on a policy of insurance covering the life of a horse. This is the second appeal. 220 Ark. 475, 248 S.W.2d 383. On the 24th day of November, 1950, for the purchase price of $50 appellant bought the horse in question, a four-year old named "Charlie." About one week later, December 1, 1950, appellant obtained the policy which insured the horse for $1,000.
State Farm Mut. Auto Ins.Co. v. Central Sur. Ins. Corp.,405 S.W.2d 530 (Mo.App. 1966) (citations omitted). Other jurisdictions have also held similarly, but have gone one step further in directly stating that an insurance policy exclusion is an affirmative defense that must be pled. "[A]n exception to the insurer's liability is an affirmative defense that is waived if not pleaded."Stucker v. Hartford Accident Indemnity, Co., 248 S.W.2d 383, 384 (Ark. 1952). "[The] necessity of raising insurance coverage exception in answer to insured's complaint was not eliminated merely because the affirmative defense may have been stated in responses to interrogatories, in correspondence exchanged between the parties, and in depositions taken prior to trial, none of which constituted a pleading or a defense to a pleading."