Shipman v. National Live Stock Ins. Co.

• Citation: 187 Mo. App. 400,173 S.W. 735
• Decision Date: 30 January 1915
• Docket Number: No. 1263.,1263.
• Parties: SHIPMAN v. NATIONAL LIVE STOCK INS. CO.
• Court: Court of Appeal of Missouri (US)

173 S.W. 735

187 Mo. A. 400

SHIPMAN v. NATIONAL LIVE STOCK INS. CO.

No. 1263.

Springfield Court of Appeals. Missouri.

January 30, 1915.

Rehearing Denied February 16, 1915.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by S. L. Shipman against the National Live Stock Insurance Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

M. S. Meyberg, of Indianapolis, Ind., and Charles L. Henson, of Mt. Vernon, for appellant. W. Cloud, of Pierce City, for respondent.

STURGIS, J.

The appellant's statement is so lucid and comprehensive that we adopt it almost in toto. Bill Taylor, a fat, gray, five year old, $400 jack belonging to the respondent, passed, unexpectedly and unattended, from this earthly life, while in his paddock on respondent's farm, at some time during the night between the 26th and 27th days of April, 1912, and left nothing, except his carcass, to shed any light on the cause of his sudden and unheralded demise. A severe lightning and thunderstorm raged about the paddock that night. Respondent had Bill insured in a local mutual company against death by fire and lightning and with appellant, in the $200 policy sued on herein, "against loss by death caused by accident or disease (except fire, lightning, or cyclone)." Bill experienced no medical examination when appellant insured him, but the policy, dated April 16, 1912, was expressly based solely on the $18 premium paid and the warranties made in respondent's written application for the insurance, dated April 13, 1912, which, among others, were that Bill was then sound and also in good health. After respondent found Bill dead that morning, intense interest centered on the remains to determine, if possible, whether death was caused by lightning, disease, or other agency, and that interest is still so centered, in this appeal. Seeking to determine the question, respondent called a graduate veterinary surgeon, who held a post mortem examination on April 30, 1912, in doing which he cut into the carcass in respondent's presence. Dr. Pearson, in the proof of loss which respondent sent to the appellant, stated the cause of Bill's death thus:

"Obesity, the accumulation of fat, was present in the thoracic cavity and in the region of the heart, resulting in the lack of heart development in proportion to the size and weight of the animal."

Respondent, as a witness in his own behalf, never undertook to tell the cause of Bill's death, and did not know whether it was lightning or what. Bill had missed coming to his feed that morning, and respondent went to look for him, and found him dead in the pasture; did not know there was anything wrong with him when he signed the application and got the insurance, nor when he lay a corpse, "only he was dead when I found him"; admitted that he was in the same condition before his death as at death except he was alive at one time and dead at the other. The veterinary described the post mortem thus:

"After opening up the carcass after making an incision through the skin, I cut into a layer of fat, which wasn't firm. That is, too much accumulation on the outside under the skin, but we got to the muscles, and the thoracic cavity was opened, and in there I found an undue accumulation of fat around the heart, also including some of the structures of the heart. The heart was entirely too small in proportion to the size and weight of the animal."

He gave this as being, in his opinion, the cause of Bill's death. He testified on cross-examination that he could not say how long the obesity around the heart had existed. He thought it had existed more than two weeks, which would cover the date of the policy, but was not certain as to the extent. He also testified that, so far as could be discovered by any one seeing and handling him, the animal was perfectly healthy up to the time of his death.

Upon receipt of the proof of loss containing Dr. Pearson's statement therein, the appellant declined to pay the $200 policy on the ground that respondent in the written application for the insurance, and as a basis thereof, had warranted Bill to be sound and in good health. Appellant took the position that if Bill died from "obesity, an accumulation of fat in the thoracic cavity and in the region of the heart, resulting in the lack of heart development in proportion to the size and weight of the deceased animal," then, as such death was on April 27, 1912, the condition necessarily existed on April 13, 1912, the date the application and warranty were made. Holding the warranty not to be a fact, appellant rejected the claim, and in the same letter inclosed a United States postal money order to respondent for $18, the amount of the premium received. Respondent testified that, shortly after the claim was declined, he placed the matter, money order included, into the hands of his lawyer, and never wrote the appellant anything after receiving the money order. This attorney was permitted to testify, over the objections of appellant, that he wrote appellant a letter a short time after the matters were placed in his hands, to the effect that he was representing respondent, and that he would bring suit unless the claim was settled within 30 days; that the money order was held subject to appellant's order. If they were willing to let it go as a credit upon the $200, "we will accept it, but if not, why we offered to return it to them or do whatever with it they asked. It was held subject to their order, and we declined to accept it in settlement." That money order was held by respondent, uncashed, from the day of its receipt early in June, 1912, and was openly tendered by the respondent to the appellant at the trial in circuit court, January 17, 1914, who declined it, and same was then deposited in court.

This action was brought before a justice of the peace, where a judgment by default was rendered against appellant, and an appeal was taken to the circuit court. The statement filed in the justice court alleges the execution of the policy insuring against...