Martin v. National Livestock Insurance

131 P. 511, 65 Or. 29, 1913 Ore. LEXIS 230

• Court: Oregon Supreme Court
• Decided: April 22, 1913
• Status: Published

Opinion

Mr. Justice Moore

delivered the opinion of the court.

The only error assigned is that the complaint does not state facts sufficient to constitute a cause of action, and hence no judgment could be based thereon. It is argued that the plaintiffs failed to allege a right of action in themselves.

1. The complaint in this particular reads as follows: “That at all times between the 9th day of February, 1910, and the death of the stallion hereinafter mentioned, and at said time, the plaintiffs were the owners of a certain stallion named ‘Priam,’ and that during all of said time said stallion was in the possession of said plaintiffs in Polk County, State of Oregon.” When it is remembered that the policy was issued November 11, 1910, or nine months and two days after the complaint impliedly stated that the plaintiffs became the owners of the animal, the primary pleading conclusively indicates a right of action in the parties who maintain it. The complaint sufficiently shows that the plaintiffs had an insurable interest in the property when the contract of indemnity was made, and also at the time of the death of the horse, and such averment was sufficient: Chrisman v. State Ins. Co., 16 Or. 283 (18 Pac. 466); Hardwick v. State Ins. Co., 20 Or. 547 (26 Pac. 840).

2. It is insisted that the complaint fails to aver that the death of the animal resulted from one of the particular perils against which the assured were indemnified. The initiatory pleading in this particular reads as follows: “That on the 14th day of November, 1910, in Polk County, State of Oregon, the said stallion died, from disease.” It will be kept in mind that the indemnity guaranteed by the policy was against loss by death inter alia “from disease.” This was one of the hazards enumerated. The averment last quoted brought the case within the specifications, and the complaint in that particular was sufficient. A stipulation on the back of the policy, as far as material herein, reads: “This association will not indemnify or incur any liability for loss of any animal caused directly or indirectly by invasion, insurrection, riot, war or any uprising necessitating martial law, or any other usurpation or order of any civil authority, or when such animal is killed or destroyed by an officer or by order of any civil officer or civil authority.”

The statute provides generally that in all cases of contagious, infectious or communicable diseases of a dangerous or incurable type that may exist in this state among domestic animals, excepting sheep, it is the duty of the state or county veterinarian to cause the. destruction of such animals: L. O. L., § 5649. Any animal that is thus affected shall possess no property value, and may be condemned and destroyed by the state or county veterinarian without compensation to its owner: L. O. L., § 5652. Belying upon these provisions, the defendant’s counsel contend that it was incumbent upon the plaintiff to aver in the complaint that the death of the stallion did not result from any of the causes specified in the policy or the statute; but, having failed to do so, the initiatory pleading did not state facts sufficient to constitute a cause of action. The plaintiffs were under no obligation to anticipate a possible defense by alleging in the complaint that the death of the animal did not result from any of the causes specified: Little Nestucca Road Co. v. Tillamook County, 31 Or. 1 (48 Pac. 465, 65 Am. St. Rep. 802). It is not averred even in the answer that the loss of the property was occasioned by any of the causes to which reference has been made.

The complaint was adequate in all particulars; and, this being so, the judgment is affirmed.

Affirmed.