WJ Perryman & Co. v. Penn Mutual Fire Insurance Co.

• Decision Date: 13 November 1963
• Docket Number: No. 20308.,20308.
• Citation: 324 F.2d 791
• Parties: W. J. PERRYMAN & COMPANY, Inc., Appellant, v. PENN MUTUAL FIRE INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

324 F.2d 791 (1963)

W. J. PERRYMAN & COMPANY, Inc., Appellant, v. PENN MUTUAL FIRE INSURANCE COMPANY, Appellee.

No. 20308.

United States Court of Appeals Fifth Circuit.

November 13, 1963.

Marion R. Shepard, Jacksonville, Fla., Marshall H. Fitzpatrick, Birmingham, Ala. (Mead, Norman & Fitzpatrick, Birmingham, Ala., Mathews, Osborne & Ehrlich, Jacksonville, Fla., of counsel), for appellant.

William M. Howell, Charles Cook Howell, Jacksonville, Fla. (Howell, Kirby, Montgomery & Sands, Jacksonville, Fla., of counsel), for appellee.

Before RIVES and JONES, Circuit Judges, and DAWKINS, Jr., District Judge.

JONES, Circuit Judge.

The appellant, W. J. Perryman & Company, Inc., is an Alabama corporation. On July 1, 1947, it entered into a contract with the appellee, Penn Mutual Fire Insurance Company, a Pennsylvania corporation, appointing the appellant as general agent of the appellee in the State of Alabama. By an amendment to the contract the appellant also became the appellee's general agent in the State of Florida. The contract terminated on October 12, 1957. On November 22, 1957, the appellant brought suit in the United States District Court for the Northern District of Alabama, there identified as Civil Action No. 8895, against the appellee. In its complaint in that action the appellant asserted that the appellee had breached the contract and that, in violation of the contract, the appellee had sought to appropriate to itself the good will and business of the appellant by the solicitation of insurance renewals. It was alleged that:

"By these unlawful acts in violation of the defendant\'s appellee contractual obligation to the plaintiff appellant as above set forth, and by the continuation of such acts in the future, the defendant has injured and damaged the plaintiff in a large sum of money, to-wit, $100,000.00. * * *"

The appellant, by the prayer of its complaint in the Alabama suit, sought to enjoin the solicitation of renewals or the making of renewals.

The claims asserted in the Alabama litigation were compromised, settled and released. The compromise was effected by a formal instrument of release. It recited that the averments of the then pending action were incorporated in and made a part of the release by reference. Payment by the appellee to the appellant of $55,000.00 was acknowledged "by way of compromise of the claims and demands made against it in said Civil Action No. 8895." The operative part of the release is in the following terms:

"Now, Therefore, In Consideration of the Premises and of the payment to Undersigned of the sum of Fifty Five Thousand ($55,000.00) Dollars, the receipt of which is hereby acknowledged, the Undersigned does hereby remise, release and forever discharge Penn Mutual Fire Insurance Company, a corporation, its officers, servants, agents, employees, successors and assigns of and from all and all manner of actions, causes of action, suits, proceedings, debts, dues, contracts, damages, claims and demands whatsoever in law, equity or civil action, which against the said Penn Mutual Fire Insurance Company, a corporation, its officers, servants, agents, employees, successors or assigns the Undersigned ever had, now has, or which it and its successors and assigns hereafter can, shall or may have for or by reason of the asserted breach by Penn Mutual Fire Insurance Company of the said contract of, to-wit: July 1, 1947, and said contract as amended, and by reason of any matter, cause or thing whatsoever averred in said Civil Action No. 8895, or which could have been litigated in said Civil Action No. 8895. It is understood and agreed between Undersigned and Penn Mutual Fire Insurance Company that Undersigned will cause said Civil Action No. 8895 to be dismissed with prejudice at the cost of Penn Mutual Fire Insurance Company."

It was recited that the payment was in satisfaction of the appellant's claim for compensatory damages only and not for punitive damages. It was agreed that the payment was not to be construed as an...