W. Horse & Cattle Ins. Co. v. O'Neill

• Citation: 21 Neb. 548,32 N.W. 581
• Parties: WESTERN HORSE & CATTLE INS. CO. v. O'NEILL.
• Decision Date: 06 April 1887
• Court: Supreme Court of Nebraska

21 Neb. 548

32 N.W. 581

WESTERN HORSE & CATTLE INS. CO.

v.O'NEILL.

Supreme Court of Nebraska.

April 6, 1887.

Syllabus by the Court.

One O'Neill insured a mare for the sum of $100 in the Western Horse & Cattle Insurance Company, and afterwards violently beat and abused said mare by striking her with an iron rod. Held, that a preponderance of the testimony clearly established the fact that the death of said mare was the result of such striking and abuse, and that O'Neill was not entitled to recover the amount of the insurance for the death of said mare.

Error to Platte county.Higgins & Garlow and Charles Ogden, for plaintiff.

McAllister Bros., for defendant.

MAXWELL, C. J.

This is an action brought upon an insurance policy on one bay gelding six years old, and one bay mare eight years old, it being alleged said gelding died from disease, April 18, 1885; and said mare died from disease, May 13, 1885. The defendant, in answer, admits insuring the property, but alleges “that said bay gelding died by reason of abuse of plaintiff, and for want of proper and reasonable care, and defendant denies that said policy was in force at the time of the death of the said mare, but alleges that said policy contained a condition that the defendant corporation reserved the right to cancel said policy at any time, by giving notice to that effect to the policy-holder, and returning to him the amount of unearned premium; and that, in pursuance of said condition, said defendant did, on the ninth day of May, 1885, cancel said policy in accordance with said condition. And defendant further alleges that said last-named animal died by reason of the abuse of said plaintiff, and for want of proper and reasonable care.” In reply, the plaintiff admits that said policy of insurance contains a provision therein as stated in defendant's answer, viz., that said defendant corporation reserve the right to cancel said policy of insurance at any time by giving notice to that effect to the policy-holder, and returning to him the unearned premium, but denies that said defendant canceled said policy in manner and form as stated in their answer; also denies all other new matter contained in said answer as a defense. On the trial of the cause the jury returned a verdict in favor of O'Neill for $227, and judgment was rendered thereon. The gelding was insured for $115, and the mare for the sum of $100.

After a pretty careful examination of the testimony, we think the insurance company has failed to establish any defense against the payment of the insurance on the gelding, as there is no proof that such gelding died from the fault of O'Neill.

In regard to the mare, however, we think the company has established a complete defense against the payment of the insurance on her.

One W. M. Abbott testifies as follows: “I reside in Humphrey, Platte county. Have lived there for two years. Am acquainted with Thomas O'Neill. Was acquainted with him last spring. I saw Mr. O'Neill in Humphrey in the early part of the month of April last year, [1885,] when he came to take a calf from my house. Had a...