234< RISK IN A HORSE INSURANCE POLICY. 



was admitted that the accident to the horse was of such a 

 character that death was inevitable, and that the only 

 humane course was to kill it. (a) Lord Justice-Clerk Kings- 

 burgh observed : — " The pursuer, under such a policy as 

 this, if he adopts the alternative of putting the animal to 

 death, undertakes the onus of showing that death was inevi- 

 table under the circumstances. He undertakes that risk, 

 and if he fails, he loses his case. But if he succeeds in 

 proving that the result, the only result sooner or later of the 

 injury, would be the death of the animal, and that its 

 immediate destruction is the only humane course to follow, 

 then I think we must take the case on the footing that the 

 animal had been killed outright, and not merely fatally 

 injured." (6) There was evidence held sufficient to prove 

 that the pursuer was justified in killing the horse, that the 

 notice was received by the company's manager before he 

 repudiated liability in case of its being destroyed by the 

 owner without the written consent of the company. The 

 company under these circumstances pleaded want of notice 

 to the office of the company, and that they received no 

 report by a qualified veterinary surgeon, but it was held — 

 (1) that as it had been proved that the horse was fatally 

 injured, and that in the circumstances the proper course was 

 to kill it at once, the case was to be taken as one of death, 

 and not of injury in the sense of the condition ; (2) that 

 although the notice had been sent only to an agent of the 

 company, yet as it had de facto reached the manager time- 

 ously, it was sufficient ; (3) that the instant repudiation of 

 liability by the company had rendered it unnecessary for the 

 pursuer thereafter to send the report required by the condi- 

 tion, and barred the company from objecting to the want 

 of it. 



The other usual conditions are that when accidental 

 death shall occur by reason of the negligence, carelessness, 



(a) Shidls V. Sc. Ass. Corporation, 1889, 16 R. 1014. 

 (h) Shidls, cit. p. 1019. 



