Joplin v. National Live Stock Ins., 122 P. 897

Joplin v. National Live Stock Ins.

122 P. 897 | Or. | 1912

Mr. Justice McBride

delivered the opinion of the court.

1. The findings in this case are such that a judgment should have been given for defendant. The horse did not die by disease; nor was its killing necessitated by any casualty. He was shot by consent of defendant’s agent and veterinarian and the plaintiffs, because he had an incurable disease which was likely to be communicated to other animals. Under Sections 5651, 5652, L. O. L., it was the duty of plaintiffs to have immediately notified the State Board of Health or the State Veterinarian of the fact that the horse was infected with an incurable contagious disease, and it would have been the duty of such officer to have caused the animal so infected to be killed. In such case, the killing would have been “by order of the civil authority,” and by the terms of the policy would have created no liability on the part of defendant. If plaintiffs chose to disobey the statute and allow other parties to do for them what the civil authorities would have done in any event, they cannot thereby create a liability which would not have existed, had they complied with the law. Tripp v. Northwestern Live Stock Ins. Co., 91 Iowa 281 (59 N. W. 1).

2. It was found by the court that the killing was done by consent of plaintiffs and the managing agent of defendant; but this is not pleaded, and the authority of the agent to bind the company by introducing a new term into the contract is not shown. The policy contains this stipulation:

“No agreement either verbal or otherwise contrary to these stipulations made by any agent or employee shall be binding on this association unless authorized by the home office.”

The complaint does not state that the home office ever authorized any of its agents to agree to the killing of the animal; nor is there any finding to that effect.

*547The judgment is reversed, and the cause will be remanded, with directions to the lower court to enter a judgment for defendant.

Reversed : Rehearing Denied.