Lowe v. Cheese Makers Mutual Casualty Co.

The briefs that were filed with the trial court were not made a part of the record, but from the briefs and arguments in this court it is evident that the defendant, in its trial brief, raised the question of a policy defense. Under the exclusions in the policy there is a provision that the policy does not apply “while the automobile is subject to any . . . mortgage or other incumbrance not specifically declared and described in this policy.”

The plaintiff contends that this policy defense was an affirmative defense that must be pleaded separately. The trial court held that par. 4, which is…