Tripp v. Northwestern Live Stock Insurance

Eobinson, J.'

In April, 1890, the defendant issued to the plaintiff a policy of insurance, which, by its terms, was to terminate on the fourteenth day of April, 1891. The policy insured the plaintiff against loss from death, caused by disease or accident, of a stallion *279 known as Bar Non, to an amount not exceeding five hundred dollars. Two hours before th e expiration of the policy, the horse was intentionally killed. Plaintiff alleges that the horse was suffering from a disease from which he appeared to be recovering when insured; that serious illness was not apprehended until October, when the disease again appeared and continued until the death of the horse; that defendant sent one Ray, a veterinary surgeon, to treat the horse, with full power to do with him what seemed proper; that Ray became satisfied that the horse could not recover, and on the morning of the fourteenth day of. April, 1891, as an act of mercy, and to relieve the horse from its suffering, directed that he be killed, and that in consequence of that direction he was killed, by shooting and the opening of a vein in his neck; that the vein was opened by Ray; and that, in all that he did, he acted for defendant. The defendant denies that, the death of the horse was the result of disease or accident; denies that Ray was authorized by it to kill the horse; and avers that he was employed to treat, and, if possible, to cure, him. The defendant further alleges that plaintiff did not use the diligence and care for the preservation and safekeeping of the horse required by the policy, and that he was killed for the purpose of attempting to impose upon the defendant a liability which was not created by the policy. The evidence shows that the horse, when insured, was suffering from the disease which he had when killed. He had been under treatment for it several months before that time, and plaintiff had written to defendant several letters in regard to the matter. On the fourth day of April, 1891, the plaintiff called on the secretary of defendant in Des Moines, - and after some conversation, they called in Dr. Ray and had some conference with him in regard to the condition and treatment of the horse. At the close of the conference, the secretary said they would try to *280 send Ray out, to see if anything could be done for the horse. A few days later, Ray appeared at the residence of the plaintiff and said the defendant had sent him there to take charge of the horse. On the ninth day of April, Ray told the plaintiff that the horse was worthless, and never would be worth anything, and that he thought it would be best to kill him. The plaintiff said that he would not feel like doing that without first seeing the company, as it had insured the horse, and asked Ray if he would be willing to make a statement in writing. Ray said he would, and wrote and signed a statement, which we do not find in the record, but which, we understand, was to the effect that the horse was worthless, and could not recover and that it would be best to kill him. On the thirteenth day of April the plaintiff visited the president and secretary of defendant, in Des Moines, and conversed in regard to the horse. The plaintiff told the officers that the horse was in a bad condition, and that Ray had advised his destruction. The president said he doubted that, but finally told the plaintiff to go home, and follow Ray’s directions. At that time, the plaintiff had in his pocket the statement signed by Ray, but did not disclose the fact. The plaintiff returned to his home and asked Ray further in regard to the 'horse. Ray said he was not worth a cent, and never would be; that the disease he' had would certainly prove fatal; that he was liable to drop dead at any time, and would die within a few days at the furthest. Plaintiff asked him what he would advise, and he said he would take the horse out, and shoot him. Ray then turned to an employee of plaintiff, and told him to take the horse out, and shoot him; and he was taken out and shot by the employee and another, under the immediate direction of Ray, who also assisted by opening a vein. The horse was dead two hours before the expiration of the policy.

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*281 We have examined the entire record with much care, and reach the conclusion that the destruction of the horse was not authorized by the defendant; that it was not caused by disease or accident, within the meaning of the policy; and that it was brought about by the active and skillful management of the plaintiff, in order that he might make a claim under the policy. It is not shown that the horse was in pain, nor that his death was required as an act of mercy, to relieve his sufferings. It is possible, though not at all probable, that his death would have occurred during the life of the policy, had it not been hastened as’ stated. But it is certain that neither disease nor accident was the direct and immediate cause of the death. The defendant had undertaken to insure against loss from death which should result from either of those causes, and its liability for such loss was conditioned upon the exercise by the assured of “all diligence, precaution, and care in the use, and for the safety, health, and preservation, of said live stock,” and “in case of sickness or accident,” plaintiff agreed 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,” and he was required to notify the defendant, or its nearest agent, at once, of the fact of the sickness or accident'. The policy also provided that its benefit should not extend to any fatal injury which occurred through the connivance, sufferance, or act of the plaintiff, his agent, or employee. The entire contract of insurance shows that it was not intended that the defendant should be liable for any willful act which tended to hasten the death of the horse insured, but that it should be relieved from liability by tsuch act. When Ray yjas employed by the defendant to treat the horse, it was to preserve him, and to prolong his life; not to *282 take it. It must be accepted as true that the president of defendant told plaintiff to go home, and follow the advice of Eay, and that plaintiff did so; but we are satisfied that the president did not intend to authorize the creating of liability against the defendant by the killing of the horse, and that Eay did not intend to act for the company, in advising and assisting in the killing, but that what he said and did was in response to the inquiry, and for the benefit, of plaintiff. We are also satisfied that plaintiff knew that Eay was not assuming to act for the company when he advised the destruction of thfe horse, and assisted to accomplish it.

3 4 If it be conceded that the president and- secretary of the company, or either of them, intended to authorize Eay to do what was done, their power to bind the defendant by doing so is not shown, and can not be presumed. The business of the defendant appears1 to have been to insure against loss which resulted from the death of live stock; not to destroy it, and then pay for its loss. The obligation which, it is said, the president attempted to create was of the latter kind, and, therefore, was not, so far as is shown, within the scope of his powers. See Templin v. Railway Co., 73 Iowa, 552 , 35 N. W. Rep. 634 , and cases therein cited. The officers of defendant reached the limit of their authority when they had used every reasonable effort to preserve the life of the horse. If a liability was created by killing him, it was not one provided for by the policy, and an action thereon can not be maintained for the loss. The burden was upon the plaintiff to show that the disease from which the ffiorse suffered was the cause of, and not merely a pretest for, his death during the life of the policy; and that he has wholly failed to show. We conclude that the district court rightly directed a verdict for the defendant, and its judgment is ahbtbmed.