Mills v. Pennsylvania Mutual Live Stock Insurance

Opinion by Trexler, J., This is a suit on a policy of insurance on a horse. The policy was dated April 22, and was left with the plaintiff conditionally, he stating, that he would keep it if he did not sell the animal. On July 12 plaintiff paid the premium to the secretary and treasurer of the company and the same was retained until September 19 when a check for the amount of the premium was sent to the insured but was not accepted by him. The policy provides that if the premium is not paid within thirty days of its date, it shall become null and void. The conditions under which the policy was issued bound neither the company, nor the plaintiff. There was no mutuality, nor union of minds. When the premium was paid and accepted by the company, the policy in the hands of the insured, instead of being what might be called an option to insure, became a contract, for which the money having been paid, good faith and fair dealing would require the company to recognize. The parties notwithstanding the provisions of the contract and its earlier date, could nevertheless at the time of the payment of the premium recognize the binding force of the agreement, either by’ express words, or by acts which were in furtherance of it and thus be estopped from denying its existence. The retention of the premium by the company was sufficient to justify the jury to infer a waiver and the court committed no error in so stating on the trial of the case. By the payment of the premium and its acceptance as was stated in Lantz [489] v. Vermont Life Ins. Co., 139 Pa. 546 (561), “it was restored to life. It was then in effect a new policy starting from the day the premium was paid.” On the same day on which the premium was paid, plaintiff consulted a veterinarian and secured some powders and with them a blister to put on the horse’s neck. It was testified,the horse had a cough, which according to plaintiff’s testimony grew better and to the best of his knowledge disappeared entirely in a few days. Ten days after the premium was paid the horse died, the cause of its death according to the veterinarian being influenza, although theré was some testimony to show that the veterinarian had stated that it was dropsy of the heart. A number of witnesses testified that the horse had taken its meals regularly, had done steady work and to all appearances was in a good state of health up to a short time before its death. The policy requires immediate notice to the secretary of the company of any sickness and the immediate employment of a licensed veterinarian. The insured did notify the company immediately of the death of the horse, and the company at once sent its surgeon to make a post-mortem. The defendant claims that because the death was consequent upon and a continuance of, the illness which the horse is alleged to have had on the day the premium was paid there can be no recovery. Plaintiff’s theory is that there was no connection between the two and that the death of the horse came without any visible prior disorder occasioning it. The dispute as to these facts was left to the determination of the jury. As was said in the case of Robson v. Pennsylvania Mutual Live Stock Ins. Co., in an opinion this day filed, post, p. 491, there is distinction between a slight ailment which does not incapacitate the animal and what is generally known as sickness which is a condition of ill health usually affecting the whole body. We will not again refer to the cases which are there cited. A horse may have a cough and still not be sick. The [490] plaintiff states that the horse was apparently well the day before its death, but the court could not have instructed the jury that a cough or distemper was such a condition as rendered the animal sick. The question of good health under a life insurance policy is to be determined by the jury: Horne v. John Hancock Mutual Life Ins. Co., 53 Pa. Super. Ct. 330. Whether the disorder that the horse had at the time the premium was paid was such as was covered by the policy and was in contemplation by the parties is a question for the jury: Home Mutual Life Association v. Gillespie, 110 Pa. 84. The learned court could not assume the truth of the testimony produced by the defendant and in order to decide in defendant’s favor he would have had to do this. We think the decision of the matter was properly left to the jury. The defendant company further contends that there can be no recovery because the plaintiff never filed any written notice of death or proof of loss. That the company had notice of the death is not denied. It promptly, after it received a message by telephone apprising it of the death of the horse, had its surgeon perform a postmortem. It having received notice and acted upon it, it is assuming a very technical position to claim exemption from liability because the notice was not in writing; but be that as it may, before the sixty days had expired in which the plaintiff was required to give notice of his loss in writing and file proofs of such loss, the company .by a letter sent to the plaintiff, informed him that the board of directors denied liability for the horse which died and returned the premium paid. Having denied its liability it would seem it would have been entirely unnecessary for the plaintiff to have furnished proof of death. The general proposition is stated in 13 Am. and. Eng. Ency. of Law (2d ed.), 345, as follows, “Acts of conduct making it apparent that the furnishing of proofs would be unnecessary and nugatory .... such as a denial of liability by the insurer .... are in practice [491] the most common instances of waiver not only of defects or of time but of any proofs whatever. The cases upon this subject are very numerous. As stated by Judge Henderson in the case of O’Neil v. American Assurance Co., 52 Pa. Super. Ct. 577, “many of our cases hold that where an insurance company, in an action on a policy denies all liability and refuses to pay anything such defense amounts to a waiver of notice and proofs of loss: Girard Life Ins. Co. v. Mutual Life Ins. Co., 97 Pa. 15; Lebanon Mutual Ins. Co. v. Erb, 112 Pa. 149; Union Type Foundry Co. v. Kittanning Ins. Co., 138 Pa. 137; Weiss v. American Fire Ins. Co., 148 Pa. 349; White v. Metropolitan Life Ins. Co., 22 Pa. Super. Ct. 501. When an insurance company by denying liability leads a policy holder to believe that the filing of proofs would be fruitless it cannot afterwards in an action successfully defend because of a failure to make such proofs.” This disposes of all the defenses raised by the defendant. A motion was made for the entry of judgment n. o. v. but in view of the affirmance of the action of the court upon the other assignments of error it will not be necessary to discuss this feature of the case. Judgment affirmed.