Donnelly v. Underwriting Members of Lloyd's

THE COURT. It appearing that following the judgment and decision in the above entitled cause on October 1, 1941, a petition for rehearing questioning the jurisdiction of this court was granted, and that the cause was for that reason transferred to the Supreme Court, and it appearing that by its order dated April 23, 1942, the cause was re-transferred to this court by the Supreme Court, and no other reasons appearing why the disposition of the cause should be delayed,

It is hereby ordered that the judgment appealed from is reversed and judgment is ordered entered in favor of the defendant for the reasons stated in our former opinion filed herein October 1, 1941, which is hereby adopted as the opinion of the court.

The prior opinion of October 1,1941, is as follows:

STURTEVANT, J. The plaintiff commenced an action to obtain declaratory relief. The defendant answered and after [741]a trial before the court sitting without a jury the court made an interlocutory decree in favor of the plaintiff. From that decree the defendant has appealed.

The plaintiff is the owner of Galesworthy D, a trotting stallion. On November 23, 1938, the defendant insured the horse for a period of one year. On July 9, 1939, the horse fractured a bone in his left hind leg. The break was of the bone between the fetlock and the hoof. Some union was made but in the language of a layman it was a gristle union. The horse is and will continue to be wholly incapacitated from racing or any other kind of work. The plaintiff claims that under the terms of the policy he is entitled to kill the horse and to collect the insurance. However his counsel stated in open court and many times repeated, “I am not contending . . . the horse is suffering to such degree that his suffering requires his slaughter.” Accepting such statement the defendant thereupon contends that the plaintiff had no claim under the clear provisions of the policy.

The policy consists of a written proposal and a written acceptance. The proposal is in the form of a questionnaire. From it we quote, “2. For what purpose kept or employed 1 (a) Racing (trotting).” The acceptance, among others, contains these provisions: (1) “We hereby agree to indemnify the said J. W. Donnelly in the above sums against the death by natural causes and/or fire and/or lightning and/or accident and/or the Act of God or man as well as from the necessity of its destruction arising from any of the above causes of the said Stallion Trotter which may occur during that time, anywhere within the limits of the U.' S. of America. ... (2) This insurance does not cover loss occasioned through an animal becoming unfit or incapable of fulfilling the functions or duties for which it is kept or employed unless expressly agreed to by endorsement hereon, and no insured animal shall be used for purposes other than those stated in -the proposal form, nor be operated upon, nor be slaughtered unless deemed necessary on the advice of a qualified Veterinary Surgeon, and any contravention of these conditions shall render the policy null and void.” For convenience of reference we have placed the numbers on said paragraphs. The plaintiff produced the written statement of a veterinary surgeon, Dr. Arburua, in which he stated: “I have been asked whether in my judgment it is necessary to destroy this horse. My answer is that this depends upon the sense in which the word ‘necessary’ is used. From a