141 U.S. 564 (1891), Fire Ins. Ass'n v. Wickham

Citation:141 U.S. 564, 12 S.Ct. 84, 35 L.Ed. 860
Party Name:FIRE INSURANCE ASS'N, Limited, v. WICKHAM et al.
Case Date:November 16, 1891
Court:United States Supreme Court

Page 564

141 U.S. 564 (1891)

12 S.Ct. 84, 35 L.Ed. 860



WICKHAM et al.

United States Supreme Court.

November 16, 1891

In error to the circuit court of the United States for the eastern district of Michigan. Affirmed.

[12 S.Ct. 84] Action by John W. Wickham, Jr., and others against the Fire Insurance Association, Limited, upon a policy of fire insurance. The question arises on a certificate of division of opinion between the circuit and district judges as to the admissibility of certain parol evidence. The evidence was admitted at the trial, and verdict and judgment were rendered for plaintiffs. Defendant brings error.

The other facts in the case fully appear in the statement by Mr. Justice BROWN:

This case was brought before the court upon a certificate of division of opinion between the circuit and district judges. The action was begun in November, 1884, upon two policies of fire insurance written by the Fire Insurance Association, defendant, upon the propeller St. Paul, of which defendants in error were owners, one of such policies being for $3,500, and the other for $1,500. On the same day actions were begnn against six other insurance companies upon their policies on the same vessel, and an order was subsequently made that all the actions so commenced should abide the event and final determination of the one which the plaintiffs should elect to try. The following facts appeared upon the trial: In 1883 the plaintiffs, who were the owners of the propeller St. Paul, engaged in navigating the Great Lakes, obtained upon her fire insurance policies in 10 companies, to the amount of $40,000. Plaintiffs also had $45,000 of insurance by marine policies on the same vessel at the same time. In all of these policies save one, it was provided that, in case of loss by fire, the loss should be payable in 60 days after proofs of loss had been filed with the company. On November 10, 1883, [12 S.Ct. 85] while on a voyage from the lower lakes to Lake Superior, a fire broke out in the hold of the vessel, and to save her and her cargo she was scuttled and sunk, and the fire thus extinguished. She was subsequently raised, and brought to Detroit for repairs, where she arrived on the 19th of November, and immediately began to discharge her cargo. A few days thereafter, and while her cargo was being unloaded, another fire broke out in her hold, and she was again sunk for the purpose of saving her, and was afterwards raised at considerable expense. On the 15th of December a written agreement was entered into between the plaintiffs and the adjusting agents of the several insurance companies for the purpose of appraising the amount of loss caused by these fires, with a stipulation that the agreement should be 'of binding effect only as far as regards the actual cash value of or damage to such property covered by policies of said companies issued at their various agencies.' It was further added that 'the property on which loss or damage is to be estimated and appraised is the hull of the propeller St. Paul, including the tackle, awnings, furniture, engine, and boiler connections, and appurtenances thereto belonging;' with a further memorandum, following the signature of Wickham, but preceding those of the insurance companies, that 'this agreement does not apply to or cover any question that may arise for saving boat and cargo.' The adjustment under this agreement of the direct loss by fire was completed December 26th, and formal proofs of loss were also sent to the several insurance companies in New York, and were received in due course of mail. The amount of the loss, according to the report of the appraisers, exclusive of the expense of raising and saving the vessel and cargo thus adjusted, aggregated $15,364.78, and the amount proportioned to the plaintiffs in error was $1,920.60. The adjusting agent, in sending proof of loss to the companies, accompanied the same with the following letter to each of such companies:

'Buffalo, January 12, 1884.

'Gentlemen: I inclose herewith proofs, John W. Wickham, Jr., managing owner, for loss and damage prop. St. Paul, which I trust will be found satisfactory:

The claim as made covers only the loss
and damage by fire and water, as per
agreement, on the tackle, awnings
apparel, furniture, etc., of ........... $ 1,735 08
And the appraisers' award on hull,
engines, mach'y, etc., of ............... 13,629 70
Aggregating in all .................. $15,364 78
'The assured will make further claims for expenses of raising the propeller, and is now preparing the statement of such expenses to submit with his subsequent claim. Yours, truly, 'W. D. ALLEN, Adjuster.' At the trial it was admited that the cost of raising and saving the vessel was also upwards of $15,000. The plaintiffs admitted that they had been paid the cost of repairing the vessel, as set forth in the proofs of loss prepared and forwarded to the companies, but claimed that they had not been paid any part of the cost of raising and saving the vessel; that before the commencement of this suit they demanded payment thereof, which was refused, the insurers denying liability therefor; and that the same remained unpaid. The defendant claimed that the payment of the cost of repairs was made by way of accord and satisfaction of the plaintiffs' entire claim, and offered in evidence the following receipts: '$1,344.42. January 19, 1884. 'Received from the Fire Insurance Association of London, England, thirteen hundred and forty-four 40-100 dollars, it being in full of all claims and demands for loss or damage by fire which occurred on the 10th and 24th days of November, 1883, to property insured by policy No. 180,617. Buffalo, New York, agency, and in consideration of said payment said policy is hereby canceled and surrendered to said company, and all further claims by virtue of said policy forever waived. [Signed] 'JOHN W. WICKHAM, Jr., 'Managing Owner. 'W. B. COMSTOCK. 'Per WICKHAM, Jr.' There was also a receipt indorsed upon the policy No. 180,617, as follows: 'January 19, 1884. 'In consideration of four 47-100 dollars return premium, the receipt of which is hereby acknowledged, this policy is canceled and surrendered to the Fire Insurance Association, Limited, of England. [Signed] 'JOHN W. WICKHAM, Jr., 'Managing Owner. 'W. B. COMSTOCK. 'Per WICKHAM, Jr.' A similar receipt for $576.18 was given by the plaintiffs to the defendant, in form precisely like the first, (except as to the number of the policy and the amount,) on account of the second policy issued by the association. Similar receipts, all of the same date, except two, which were a few days later, were given to the other companies concerned, all of which were put in evidence by the defendant. The receipt to the Mechanics' Fire Insurance Company was expressed to be 'in full satisfaction of all claims and demands upon said company for loss and damage by fire,' etc.; and 'in consideration thereof said company is hereby discharged forever from all further claims by reason of said fire, loss, and damage, and said policy of insurance is hereby assigned, with all claim thereunder, to said company, and said policy is hereby canceled in full, and surrendered to said company.' The receipt to the London & Liverpool & Globe Insurance Company was for a sight draft, 'which, when paid, will be in full compromise and payment of all claims and demands upon said company for loss and damage by fire,' etc. The receipts to the other companies did not differ materially from those...

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