No. 121, Acts of 1896, provides that in actions brought to recover on a fire, life or accident insurance policy, the general counts in assumpsit shall be a sufficient declaration, and that the plea of non-assumpsit shall put in issue only the execution of the policy and the amount of damages sustained. This suit is brought upon an accident policy; the declaration consists of general counts adapted to the cause of action; and the pleas are the general issue and payment. The policy required the insured to use all due diligence for his personal safety and protection, and the defense relied upon was his failure to exercise the diligence so required: At the close of the plaintiff’s evidence the defendant moved for a verdict on the ground that the evidence disclosed no right of action, and a Verdict was directed accordingly.
The Act of 1896 was evidently not referred to, and the result was the direction of a verdict upon an issue that was not within the scope of the pleadings. The Act precluded the de*88fendant from relying on this defense unless specially pleaded, and that which miust be specially pleaded cannot be proved nor insisted upon, if it casually appears. The fact that the matters which are claimed to constitute the defense appear from evidence necessarily introduced to make out the case, will not enable the defendant to avail himself of them. The evidence received is to be regarded only as bearing upon the issue joined. Allen v. Parkhurst, 10 Vt. 557; Walker v. Hitchcock, 19 Vt. 634; Briggs v. Mason, 31 Vt. 434.
The defendant’s suggestion that it be permitted to file the necessary plea at this time cannot be acted upon. That course can be taken only where it is certain that the case has been tried as it would have been if the plea had been in. If this case had taken the usual course the plaintiff might have offered further evidence in rebuttal. Chaffee v. Rutland R. R. Co. 71 Vt. 384, 45 Atl. 750; Baker v. Sherman, 73 Vt. 26, 50 Atl. 633.
Judgment reversed and cause remanded.