Coventry, &C. Ins. Asso. v. Evans

• Decision Date: 05 March 1883
• Citation: 102 Pa. 281
• Parties: Coventry Mutual Live Stock Insurance Association <I>versus</I> Evans.
• Court: Pennsylvania Supreme Court

Page 281

102 Pa. 281

Coventry Mutual Live Stock Insurance Association versus Evans.

Supreme Court of Pennsylvania.

February 5, 1883.

March 5, 1883.

February 5th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Chester county: Of January Term 1883, No. 37.

COPYRIGHT MATERIAL OMITTED

William M. Hayes, for the plaintiff in error.

William T. Barber, for the defendant in error.

Mr. Justice GREEN delivered the opinion of the court, March 5th 1883.

There is no provision in the constitution, by-laws or policy of the association defendant in this case which prohibits the removal, temporarily, or for purposes of sale, out of the counties of Chester, Montgomery and Berks, of any live stock which may be insured by its policies. The constitution declares that the business of the association shall be confined to those counties. That provision, certainly, was not contravened when Oliver Evans, a resident of Montgomery county, effected a policy on two of his horses. He and they belonged in that county at the time, and after the policy was issued. The horses were sent to Philadelphia to be sold, and one of them died after being kept there for several weeks. Nothing in the contract prohibited this. For what reason should the contract be forfeited on that account? We know of none. The court left to the jury the question whether the risk to the horses was increased by their removal to, and keeping while in, the city, charging that if it was, there could be no recovery. Surely the defendant could ask nothing more than this, especially as the policy contains no provision for its avoidance in the event of an increase of risk to the animals. It is a pure question of fact, and could only be determined by the jury. The defendant's first point proposed the question as one of fact for the determination of the jury, and the court affirmed it. The court was not asked to charge upon it as a fact proved by undisputed testimony, and of course cannot be convicted of error for not having done so. So also under the fifth and sixth points, the court, in fact, gave affirmative answers, and left to the jury, as the points themselves requested, the question of the sale to the Adams Express Company. There was no request to charge that upon the undisputed testimony the express company had become the owner of the horses at the time the one in question was taken sick and died. As to the twenty-four hours notice, the plaintiff was in default. He not only did not give the notice within twenty-four hours after the death of the...