I dissent from the conclusion reached by the majority for the following reasons: *Page 203
The defense interposed by the insurer is an affirmative defense and it was necessary to establish the same.Martin v. Insurance Co., 106 W. Va. 533, 540, 146 S.E. 53, and cases cited. I cannot say as a matter of law that this requirement was met by plaintiff in error.
I believe that this case can not be distinguished in principle from the cases of Patton v. Kansas Life Ins. Co.,115 W. Va. 40, 175 S.E. 334, and Martin v. Insurance Co., supra. The violation of law with reference to the use of a public road by a driver of a motor vehicle is certainly no more serious than one where a person engages in a fight with another. It can be said with reason that a person who assaults another may expect counter-measures of a dangerous nature from a determined adversary. An operator who uses the wrong side of a public road can not be said to anticipate death from such law violation any more than one who engages in personal combat with another, who is determined to resist.
The violation of law by Collins was trivial and, although followed by his death, was not such as could be expected to be followed by a fatal result. Collisions between motor vehicles do not always result in fatalities.
There was a sufficient conflict in the testimony so as to present a jury question. There was more than a so-called scintilla of evidence which showed that Collins was on the right side of the road at the time of the collision. The weight of the evidence and the credibility of the witnesses are questions within the province of the jury, and the jury having resolved those questions against the insurer, I would not set aside its finding. *Page 204