164 S.W. 852 | Tex. App. | 1914
The appellee, J. L, Henderson, sued the appellant in the justice court of Harrison county on a policy of insurance theretofore issued on the life of a certain *853 animal on which the appellee held a mortgage. He recovered a judgment for $75 in the justice court and in the district court, to which an appeal was prosecuted.
The appellee has filed a motion in this court to dismiss the appeal for want of jurisdiction, but we think there is no merit in the motion, and it is accordingly overruled. It is conceded that the appellee was entitled to recover unless his claim was defeated by a failure to comply with certain provisions of the policy and a stipulation in the application for insurance. The following are the provisions of the policy referred to: "(1) This company will not be liable for losses occurring if the assured, in case of sickness or accident to the animal or animals hereby insured, shall fail to report forthwith by registered mail or telegraph notice to the company at its home office, 706 Majestic Building, Indianapolis, Indiana, such sickness or accident together with the name and address of the veterinarian employed. (2) This policy shall be void unless in case of loss by death under this policy the assured shall forthwith, by registered mail or telegraph, give notice thereof to the secretary of the company at its home office, 706 Majestic Building, Indianapolis, Indiana." The application contained the following question: "Do you agree that the said animals (and each of them) shall be well cared for and not neglected or abandoned or exposed to danger, and in case of sickness or accident that the same shall receive the care of a veterinary surgeon?" To this question the applicant answered, "Yes." The appellee testified, in substance, that the mule had been in charge of a negro, Isom Cater; that about a month prior to its death Cater brought the mule to him and told him that it did not seem to be doing well; that the mule did not seem to him to be sick at the time, but had no appetite. Appellee gave the animal some condition powders and administered such treatment as he thought was proper, and also notified appellant's local agent at Marshall who had issued the policy. On the 29th of June the mule seemed to get suddenly worse. Appellee immediately notified appellant's local agent, and both the agent and appellee endeavored to procure the services of a veterinarian, but were unable to do so on account of the absence of the only two veterinarians residing in that vicinity. The mule died the next day. It had been kept in the appellee's pasture about five miles from the city of Marshall.
Immediately upon the death of the animal, notice was given the appellant's local agent at Marshall, and the agent immediately forwarded the proofs of loss, which the evidence shows were received at the home office of the appellant. No question is raised about this notice having been promptly received at the home office. It is immaterial therefore that the notice was transmitted by the agent of the appellant instead of by the assured. There is nothing in the evidence to indicate that the animal was not properly cared for during its illness, or that a veterinarian was not called for as soon as its condition became sufficiently serious to require such attention.
The question, then, is: Should a recovery be denied because of the failure of the assured to report forthwith by registered mail or telegraph notice of the company at its home office of the illness of the animal before its death? Clauses in contracts which provide for forfeitures should be strictly construed against the party in whose favor they are intended to operate. The notice here provided for may be given as well after the death of the animal as before, provided it is done "forthwith" after the injury or after the sickness assumes a form which may reasonably be regarded as sufficiently serious to require medical treatment or the attention of a skilled veterinarian. It is easy to conceive of instances in which there could be neither time nor opportunity for employing a veterinarian, or for giving the notice here provided for, before death. The trial court had a right to conclude that as soon as the animal's condition indicated the need of skilled attention the appellee endeavored to procure the services of a veterinarian, and failed through no fault of his own, and that the animal's death so soon thereafter prevented the transmission of the notice before it died. Under such circumstances, the notice which was thereafter sent of the death of the animal by the agent might well be regarded as a sufficient compliance with this clause of the policy.
We do not think it can be said as a matter of law that the judgment of the court is not supported by the evidence, and it is, accordingly, affirmed.