Green v. Nw. Live Stock Ins. Co.

• Decision Date: 28 January 1893
• Parties: GREEN ET AL. v. NORTHWESTERN LIVE STOCK INS. CO.
• Court: Iowa Supreme Court

87 Iowa 358

54 N.W. 349

GREEN ET AL.

v.NORTHWESTERN LIVE STOCK INS. CO.

Supreme Court of Iowa.

Jan. 28, 1893.

Appeal from district court, Clayton county; L. O. Hatch, Judge.

Action at law upon a policy insuring one A. V. Lewis against the loss by death, caused by disease or accident, of a certain bay stallion. There was a trial by jury, and a verdict and judgment for the plaintiffs. Defendant appeals.Kauffman & Guernsey and J. E. Corlett, for appellant.

Ainsworth & Hobson and J. Larkin, for appellees.

ROTHROCK, J.

1. The policy upon which the suit is founded was issued to A. V. Lewis on the 22d day of May, 1889. It insured Lewis for one year against loss by death, caused by disease or accident, occurring to a bay stallion. The amount of the insurance was $700, and it was provided in the policy that the loss, if any, should be paid to Green Bros., as their interest might appear. The stallion died from disease on the 22d day of July, 1889, and on the 15th day of January, 1890, Lewis assigned the said policy to the plaintiffs. One defense to the policy is founded upon a clause therein, which is as follows: “That the said assured has agreed and is required to use all due diligence, precaution, and care in use, and for the safety, health, and preservation of said live stock, and, in case of sickness or accident, the holder of this policy agrees to promptly summon to his aid the best veterinary surgeon to be had in the vicinity, or, if none can be had, to otherwise provide the best available care and attention; otherwise this insurance shall be void; and he shall at once notify this company or its nearest agent of the fact of such sickness or accident.” The stallion became sick on the 14th day of July, 1889, with a disease known as “pink-eye,” the symptoms of which disease were manifested by stiffness in his limbs. After that, and up until his death, his eyes were swollen and watered, and were of a pinkish color. His legs and chest were also swollen. On the day the horse was taken sick, a veterinary surgeon was summoned to attend him. He was called from a distance of about six miles. He examined the animal, and prescribed for him, and left with the understanding that he was to return. He did return four days afterwards, and gave no prescription, because he thought the horse was better. Under the terms of the policy, if the insured failed to comply with the provisions requiring notice of sickness or accident, there could be no recovery for the death of the horse; and it is conceded that no notice of the sickness was given. The court instructed the jury upon this feature of the case, as follows: “The policy insures against loss by death, caused by sickness or accident; and any illness or accident of such a character that no danger of death is thereby suggested to the assured, as a reasonable man, is not the sickness or accident contemplated by this stipulation. But if this illness or accident is of such a character as to indicate to the assured, as a man of ordinary reason, that such illness or accident endangers the life of the animal, the stipulation under consideration would require notice of such sickness or accident to be given to the company or its agent.” In our opinion, this direction to the jury was erroneous, when applied to the undisputed...