57 Pa. Super. 491 | Pa. Super. Ct. | 1914
Opinion by
The plaintiff was the owner of a stallion which defendant insured for the term of one year. The policy covered death from accident, disease or fire. The animal having died and suit having been brought on the policy, defendant company set up various matters on defense which we are now required to consider. They are as follows:
1. That there was a mistake in the policy as to the age of the horse. At the time the insurance was effected the horse was fifteen years of age. In the policy the age is stated as fourteen. The question of age is material to the risk: March v. Metropolitan Life Insurance Co., 186 Pa. 629; Dinan v. Benefit Association, 201 Pa. 363. The uncontradicted testimony in the case is to the effect that the horse’s age was correctly stated by the insured and the agent’s attention was directed to a bill on which
There are a number of cases supporting the general proposition above advanced. We cite the following: Caldwell v. Fire Association, 177 Pa. 492; Clymer Opera Co. v. Flood City Mutual Fire Ins. Co., 238 Pa. 137; Porter v. Insurance Co. of North America, 29 Pa. Super. Ct. 75; Exchange Mutual Fire Insurance Co. v. Consolidated Mutual Fire Ins. Co., 46 Pa. Super. Ct. 601; Philadelphia Tool Co. v. British Am. Assurance Co., 132 Pa. 236; Eilenberger v. Protective Mutual Fire Ins. Co., 89 Pa. 464; Zimmer v. Central Accident Ins. Co., 207 Pa. 472.
2. That the court erred in refusing to affirm the proposition of the defendant, that “if at the time the policy went into effect the animal insured was not in good health, or was unsound, or diseased, then there can be no recovery.” The point was too broad. The language of the contract of insurance is as follows, “The company will not be liable for the death of any animal resulting from sickness or disease contracted or accident occurring prior to or upon the day of the issue of the
3. That the court erred in excluding the application and the portion of the application contained on the back of the policy. The reason for the refusal of the court to receive this evidence was that the application was not signed by the insured; that no copy was attached to the policy and that therefore the application was not competent evidence under the Act of May 11, 1881, P. L. 20. The undisputed testimony in the case shows that there was no application made out or signed by the insured and that he had no knowledge of its existence. Who wrote out the application does not definitely appear, but the company’s agent testified that the contents were not made known to the plaintiff. The defendant argues, however, that the part of the application set out on the reverse of the policy was binding on the plaintiff because he had possession of the policy and after a reasonable time was chargeable with knowledge of its contents, citing Swan v. Watertown Fire Insurance Co., 96 Pa. 37. If we conclude that the Act of May 11,1881, P. L. 20, applies, the court properly excluded the application. The portion of the application upon the back of the policy would also be necessarily excluded for it was not “a correct copy of the application as signed by the applicant.” The act of May 11, 1881, provides as follows: “That all life and fire insurance policies upon the lives or property of persons within this commonwealth, whether issued by companies organized under the laws of this state, or by foreign companies doing business therein which contain any reference to the application of the insured or the constitution, by-laws or other rules of the company either as forming part of the policy or contract between the parties thereto, or
4. During the life of the policy nodules developed on the stallion’s legs which were examined by a veterinarian, who reported that the horse was suffering from epizootic lymphangitis, a disease of dangerously infectious and virulent character. The policy provides, “This company will not be liable if the insured in case of sickness or accident to the animal or animals hereby insured shall fail to render at once notice, to the secretary of the company, of such sickness or accident, or fail to immediately employ a duly registered and licensed veterinary for the same and promptly furnish his name and address to the company.” Was the condition of the stallion such as to require the insured to report the facts to the company? The testimony in the case shows that, notwithstanding these lumps upon the stallion, he continued as active as ever and was used for breeding purposes up to within three days prior to his death. Several witnesses, one a veterinarian, testified that the horse was in good health. The veterinarian, who testified to the sickness of the animal admitted that in the condition in which he found the horse, he might render services little less than normal for months and in some cases for years. The learned judge left it to the jury to determine whether or not the horse was sick. Was the diseased condition of the legs such as to render the horse sick? Under conflicting testimony the court could not very well do anything but leave this question to the jury. There is undoubtedly a distinction between a disease which might affect some portion of the body and a general condition which causes sickness. Sickness is- usually employed as a synonym to ill health. Many of the minor physical ailments are due to a diseased condition of some portion of the body and the general health nevertheless may remain good. Illness is a disorder of health; a disease or ailment of such a character
5. The next and last question is whether the failure to mention in the proof of loss the fact that the stallion had nodules on his legs was “fraud, or attempted fraud by false swearing or otherwise, so as to work a forfeiture of all claims under the policy.” The court was right in refusing to adopt this view. The cause of the death was uncertain. There was nothing in the case to show that the failure to mention the above fact was willful and deliberate false swearing with a view to defraud the company. In fact the circumstances indicate otherwise. See Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350; Post v. Am. Central Insurance Company, 51 Pa. Super. Ct. 352 (360).
Having sustained tne views of the lower court as to matters above set forth it will not be necessary for us to consider the assignments which complain of the failure of the court to enter judgment for the defendant n. o. v.
All of the assignments of error are overruled. Judgment affirmed.