Nat'l Live Stock Ins. Co. v. Elliott
| Decision Date | 07 May 1915 |
| Docket Number | No. 8573.,8573. |
| Citation | 60 Ind.App. 112,108 N.E. 784 |
| Parties | NATIONAL LIVE STOCK INS. CO. v. ELLIOTT. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Bartholomew County; Hugh Wickens, Judge.
Action by Charles J. Elliott against the National Live Stock Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.Mitchel S. Meyberg, of Indianapolis, for appellant. Kollmeyer & Sharpnack, of Columbus, for appellee.
This was an action by appellee before a justice of the peace to recover against appellant on a policy of insurance in the sum of $125, issued by appellant to indemnify appellee against loss by death of a certain mare from foaling. Judgment was rendered against appellant by said justice, from which an appeal was taken to the Bartholomew circuit court. Appellee's complaint is predicated upon the theory that the animal insured died of foaling, and that the loss was one idemnified against by the contract or policy of insurance. Appellant denied this, and claimed the animal died from the effects of a blow upon its head with an ax. Appellant further denied that appellee had performed his part of the contract. The cause was tried by jury. Verdict and judgment for appellee for $128.70.
The only error assigned is the action of the court in overruling the motion for a new trial. The causes assigned therefor are: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law.
[1] In support of its contention appellant argues, first, that the mare insured did not die from foaling, but that death was caused by a blow on the head, inflicted by the veterinary surgeon, who was in attendance. The veterinary surgeon testified that the animal was torn up in such condition that she could not get up, and in fact could not live; that there was no chance for her at all, and that she died from foaling. He described the condition of the animal in the following language:
That he telephoned the company and wrote them what he did and all about it. That intestines can sometimes be fixed, but it could not have been done in this case. He tried to get the animal to stand because he wanted to do everything he could, but when he had exhausted every effort in his power, and found there was no possibility of the animal living, he hit her with an ax between the eyes to end her suffering; that she was in a dying condition anyway, and would not have lived longer than an hour or two. This evidence is undisputed. The animal was in a suffering, dying condition, and there was no possibility of recovery. Under such circumstances every instinct of humanity dictated that the veterinary surgeon and the owner of the animal should do exactly what they did-end the suffering. It is idle to say under such circumstances that the death was not caused from foaling insured against in the policy. The foaling brought about the dying, suffering condition. The act of the veterinary surgeon and owner was but humane, and to be commended rather than condemned, as the facts are here shown. This question has recently been decided by this court adversely to appellant's contention. Live Stock Ins. Association v. Edgar, 105 N. E. 641.
[2] It is further argued that the animal was killed by an officer of the law, and therefore there could be no recovery, as the policy contains the following language:
“This company will not be liable *** for the death of any animal which is caused by the authority or direction of any state or government officer, or other officer or of any person claiming to act under and by virtue of any law.”
Prior to the trial appellant propounded to appellee various interrogatories, among which was the following:
Upon the basis of this clause of the policy, and interrogatory, appellant contends there can be no recovery. There is no merit in this contention. It is not disclosed what official position the veterinary surgeon held, and it is clear that he was not acting in an official capacity when he performed the act complained of, but was rather performing his duty as a veterinary surgeon, prompted by the...
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