Fire Insurance Ass v. Wickham

• Decision Date: 16 November 1891
• Citation: 141 U.S. 564,12 S.Ct. 84,35 L.Ed. 860
• Parties: FIRE INSURANCE ASS'N, Limited, v. WICKHAM et al
• Court: U.S. Supreme Court

141 U.S. 564

12 S.Ct. 84

35 L.Ed. 860

FIRE INSURANCE ASS'N, Limited, v. WICKHAM et al.

November 16, 1891.

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, 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 given to the defendant company.

The defendant also put in evidence the following paper, signed by the plaintiffs, marked 'Exhibit QQ;'

'New York, January 19th, 1884.

'This is to certify that the loss and damage by fire which occurred on the 23rd day of November, 1883, to the steamer St. Paul, is this day adjusted for the sum of fifteen thousand three bundred and sixty-four and 78-100 dollars, ($15,364.78,) payable without discount upon presentation of the policies to the several companies interested by the assured, and apportioned among the several companies as follows, viz.:

Insures. Pays.

Continental of New York. $7,500 00. $2,880 90

London & Liverpool & Globe. 6,000 00 2,304 70 —Paid.

Fire Insurance Association. 3,500 00 1,344 42 —Paid.

Queen's, of England. 7,000 00. 2,668 84 —Paid.

Fire Ins. Ass'n, 2d policy. 1,500 00 576 18 —Paid.

Security, of New Haven. 2,500 00. 900 30 —Will remit.

Exchange, of New York. 2,500 00. 960 30 —Paid 1, 19, '84.

Mechanics', of New York. 2,500 00. 960 30 —Paid 1, 19, '84.

German, of Pa..... 2,500 00. 960 30 —Will remit.

Prescott Insurance Co.. 2,500 00. 960 30 —Remitted.

Greenwich, of New York. 2,000 00. 768 24 —Paid 1, 19, '84.

----------- -----------

40,000 00 $15,364 78

[Signed] 'JOHN W. WICKHAM, Jr.,

'Managing Owner.

'W. B. COMSTOCK.

'Per JOHN W. WICKHAM, Jr.

'JOHN K. OAKLEY,

'J. H. WELLMAN,

'Committee.'

The defendant having rested, the plaintiffs, in rebuttal, offered evidence tending to show that in January, 1884, Wickham went to New York, and that on the 18th of January a meeting of the companies interested in the loss was held at the board rooms in New York, at which meeting Messrs. Wellman and Oakley were appointed a committee to confer with the plaintiffs in regard to such loss. Of this meeting Wickham had no notice, and was not present. That on the following day Wickham met Wellman and Oakley, and was notified by them that they were appointed as such committee, and that the companies were ready and willing to pay the expenses of making the repairs occasioned by the fire, as set forth in proofs of loss hereinbefore mentioned.

That Wickham called attention to the claim for raising and saving the vessel, stating that he expected to get a contribution to such expense from the owners of the cargo of the vessel upon a general average, and for the sake of settlement offered to share the balance of such expense with the fire insurers in the proportion that the uninsured interest in the steamer bore to the amount insured. That the committee replied that the companies were not liable for...