Western Horse & Cattle Ins. Co. v. O'Neill
| Decision Date | 06 April 1887 |
| Citation | 32 N.W. 581,21 Neb. 548 |
| Parties | WESTERN HORSE AND CATTLE INSURANCE COMPANY, PLAINTIFF IN ERROR, v. THOMAS O'NEILL, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Platte county. Tried below before POST, J.
Judgment for the amount of insurance on the mare reversed and for the insurance on the horse affirmed.
Higgins & Garlow and Charles Ogden, for plaintiff in error.
McAllister Bros., for defendant in error.
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 18th, 1885, and said mare died from disease May 13th, 1885.
The defendant in its 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 9th 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 reserves 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 the sum of $ 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 of last year (1885), when he came to take a calf from my house; had a conversation with him; Mr. O'Neill stated...
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