87 Iowa 358 | Iowa | 1893
One defense to the policy is founded upon a clause therein, which is as follows: “That the said assured has agreed and is required to use all due diligence, precaution, and care in use, and for the safety, health, and preservation of said live stock, and, in case of sickness or accident, the holder of this policy agrees to promptly summon .to his aid the best veterinary surgeon to be had in the vicinity, or, if none can be had, to otherwise provide the best available care and attention; otherwise this insurance shall be void; and he shall at once notify this company or its nearest agent of the fact of such sickness or accident.’’ The stallion became sick on the fourteenth day of July, 1889, with a disease known as “pink eye,” the symp
Under the terms of the policy, if the insured failed to comply with the provisions requiring notice of sickness or accident, there could be no recovery for the death of the horse;' and it is conceded that no notice of the sickness was given. The court instructed the jury upon this feature of the case, as follows: “The policy insures against loss by death, caused by sickness or accident ; and any illness or accident of such a eharacterthat no- danger of death is thereby suggested to the assured, as a reasonable man, is not the sickness or accident contemplated by this stipulation. But if this illness or accident is of such a character as to indicate to the assured, as a man of ordinary reason, that such illness or accident endangers the life of the animal, the stipulation under consideration would require notice of such sickness or accident to be given to the company or its agent.” In our opinion, this direction to the jury was erroneous, when applied to the undisputed facts of the case. It is not our purpose to review the evidence. The fact is undisputed that the horse was sick and diseased on the fourteenth day of the month. There were unmistakable evidences of disease from that day until the day he died. It is true that the condition of the horse was better a day or two before he died. But the evidence of disease was plainly manifest from the day it was discovered until its fatal termination. It was not
The judgment of the district court is reversed.