The Western Horse & Cattle Ins. Co. v. Putnam

• Decision Date: 10 November 1886
• Citation: 30 N.W. 246,20 Neb. 331
• Parties: THE WESTERN HORSE AND CATTLE INSURANCE CO., PLAINTIFF IN ERROR, v. S. H. PUTNAM, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

30 N.W. 246

20 Neb. 331

THE WESTERN HORSE AND CATTLE INSURANCE CO., PLAINTIFF IN ERROR, v. S. H. PUTNAM, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 10, 1886

ERROR to the district court for Dixon county. Tried below before CRAWFORD, J.

AFFIRMED.

Barnes Bros., for plaintiff in error.

W. E Gantt and W. F. Norris, for defendants in error.

OPINION

REESE, J.

This was an action on a policy of insurance, executed by plaintiff in error to defendant in error, by which the plaintiff in error insured a certain jack, or stallion ass, as it is termed in the policy, for the sum of $ 300, the real value of which was stated in the application for insurance at $ 400.

The petition is in the usual form. The answer denies all the allegations of the petition except the issuance of the policy and the corporate existence of plaintiff in error--defendant below.

The answer contains the further defense, that in order to induce plaintiff in error to issue the policy of insurance defendant in error made a written and printed application for said policy, and in said application falsely and fraudulently represented to plaintiff in error that the animal to be insured was in a good state of health, and of the value of four hundred dollars, "which said representations, by the terms of said policy, were made a part thereof, and the basis upon which the same was issued; and it was further provided by the terms of said policy, that should said representations prove false and fraudulent, that said policy should be void." It is alleged that said representations and statements were false and fraudulent. That the animal was not in a good state of health, but was at said time "sick, lame, and diseased, and for more than five months prior to said date had been diseased with a large sore on one of his fore-legs. That it was not of the value of four hundred dollars, or any other sum, because he was unfit by reason of said sickness and disease for the purposes for which he was kept, to wit, as a stallion ass, and could not get colts, all of which said plaintiff knew at the time." It is alleged that defendant falsely and fraudulently represented that this animal insured was only six years old, when in fact it was much older--so old as to be worthless, which defendant in error well knew. That said false representations were made to procure the issuance of the policy, and were relied on by plaintiff in error. That after procuring the policy defendant in error failed to furnish proper and suitable stabling for the animal insured, but kept it during the storms of winter under an open shed and exposed to the storms and the inclemency of the weather, and by reason of the disease, old age, and exposure, the animal died.

The reply denied all the allegations of the answer.

A jury trial resulted in a verdict and judgment in favor of defendant in error for the full amount of the policy. The insurance company prosecutes error to this court.

It is first insisted that, by the allegations of the answer, the value of the animal was put in issue, and that in order to recover it was necessary for defendant in error to establish such value by competent evidence. Upon the part of defendant in error it is insisted that the value of the property was not in issue, but that if it were, it was sufficiently proven.

Conceding that the value of the insured property was in issue, we must hold that there was some competent evidence as to such value. J. E. Bennett, a witness of seventeen years' residence in Dixon county, was called by defendant in error for the purpose of proving the value of the property. He showed himself competent to testify upon the subject of the value of such animals. He had never seen the one in question. An hypothetical question, fairly reflecting the testimony offered by plaintiff as to the condition of the jack at the time of the insurance, was propounded to him in connection with the inquiry of the value of the animal. His answer was that if he was healthy, a straight, nice jack, otherwise than as stated in the interrogatory, he would be worth eight hundred dollars. He was then asked what would be the effect on the capacity of such an animal for getting foal, by driving him in the spring of the year three hundred and fifty miles in fourteen days. The answer was, in substance, that he would be worth less, giving as a reason for his answer the "change of climate in the mare season," and that not one out of twenty-five would ever get a colt, but that he would be good after that. Much stress is laid on this testimony by plaintiff in error, which, it is claimed, destroys the effect of the testimony of the witness wherein he fixes the valuation at eight hundred dollars. We do not so consider it. In the former part of his testimony the witness refers to the general valuation of the property. In the latter he refers only to the value for...