Coventry Mutual Live Stock Insurance v. Evans , 1883 Pa. LEXIS 45 ( 1883 )

Mr. Justice Green

delivered the opinion of the court, March 5th 1883.

3There is no provision in the constitution, by-laws or policy of the association defendant in this case which prohibits the removal, temporarily, or for purposes of sale, out of the counties of Chester, Montgomery and Betks, of any live stock which may be insured by its policies. The constitution declares that the business of the association shall be confined to those counties. That provision, certainly, was not contravened when Oliver Evans, a resident of Montgomery county, effected a policy on two of his horses. He and they belonged in that county at the time, and after the policy was issued. The horses were sent to Philadelphia to be sold, and one of them died after being kept there for several weeks. Nothing in the contract prohibited this. For what reason should the contract be forfeited on that account? We know of none. .The court left to the jury the question whether the risk to the horses was increased by their removal to, and keeping while in, the city, charging that if it was, there could be no recover}'. Surely the defendant could ask nothing more than this, especially as the policy contains no provision for its avoidance in the event of an increase of risk to the animals. It is a pure question of fact, and could only be determined by the jury. The defendant’s first point proposed the question as one of fact for the determination of the jury, and the court affirmed it. The court was not asked to charge upon it as a fact proved by undisputed testimony, and of course cannot be convicted of error for not having done so. So also under the fifth and sixth points, the court, in fact, gave affirmative answers, and left to the jury, as the points themselves requested, the question of the sale to the Adams Express Company. There was no request to charge that upon the undisputed testimony the express company had become the owner of the horses at the time the one in question was taken sick and died. As to the twenty-four hours notice, the plaintiff was in default. He not only did not give the notice within twenty-four hours after the death of the horse, but he did not give it within that time after he knew of the death. Had the policy or the by-laws been so framed as to make the observance of this requirement a condition precedent to a fight of recovery, the case must have been reversed for that reason. But there is nothing of the ■ kind anywhere in the contract. Ordinarily, when policies ¡arescribe fixed times for notice of loss, they provide that if the notice is not given within the prescribed time, the policy shall be void, or there shall be no right of action on it. In such cases, the terms of the contract require the courts to enforce the forfeiture. But forfeitures are not favored, and certainly in such cases as this, such a consequence can not be implied. Section 14 of the policy does not help the matter, because it merely provides that suits may be brought if payment is withheld more than sixty days after due notice of loss. This is only a permission to bring suit so far as the company is concerned. But the right to bring a suit does not depend upon the permission of the defendant. It is given by the law outside of the policy, and it is not taken away by anything within it. The defendant might easily have provided in the contract that no action should be brought thereon unless the proper notice of loss had been given, and if the policy had contained such a provision the courts must have enforced it. But there is no such stipulation to be found in this policy or in the constitution or by-laws, and we have no right to put it there. The court therefore committed no error in leaving to the'jury the question whether the notice was reasonable. If the defendant could show that it had sustained any damage on account of the plaintiff’s breach of condition in regard to the notice of loss, it might defend against the policy to that extent, but that would be the limit of its right. In Knecht v. The New York Mutual Life Ins. Co., 9 Norris 118, the breach of condition was far more fundamental against the right of action on the policy than any aspect of the present case exhibits, and yet it was held insufficient to avoid the policy.

Judgment affirmed.