
    Atlantic Horse Ins. Co. v. Randolph.
    [68 South. 444.]
    New Trial. Grounds. Objection at trial.
    
    The defense to a suit on an insurance policy, that the proof shows that no notice of the loss under the policy sued on was given as by the terms of the policy required, cannot be raised for the first time on a motion for a new trial, it must be raised before verdict, otherwise it will be waived.
    Appeal from the circuit court of Leflore county.
    Hon. Monroe McClurg, Judge.
    Suit by Abe Randolph against the Atlantic Horse Insurance Company.
    From a judgment for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    
      
      Hill S McBee, for appellant.
    
      Alfred Stoner, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

This was a suit upon an insurance policy for the sum of one hundred and twenty-five dollars upon the life of a horse. The cause having been submitted to a jury, there was a verdict for the insured. The two grounds upon which it is sought to obtain a reversal of this judgment are: First, that the company was not notified by telegraph immediately after the death of the horse, as provided by the policy; and, second, because of an alleged untrue and fraudulent statement in the application for the policy with reference to the amount which the insured paid for the horse. The record does not disclose that either of these defenses was relied upon before verdict in the court below, neither of them being raised by plea, motion, request for instructions, or otherwise.

One of the grounds of the motion to set aside the verdict and award a new trial is that:

“The proof shows that no notice of the loss under the policy sued on was given as by the terms of said policy required.”

Such a defense cannot be raised, however, for the first time on a motion for a new trial. It must be done before verdict; otherwise it will be waived.

Affirmed.  