Adalian's, Inc. v. Fidelity-Phenix Fire Ins. Co.

• Decision Date: 22 January 1936
• Docket Number: No. 7700.,7700.
• Citation: 81 F.2d 226
• Parties: ADALIAN'S, Inc., v. FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Fifth Circuit

81 F.2d 226 (1936)

ADALIAN'S, Inc., v. FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK.

No. 7700.

Circuit Court of Appeals, Fifth Circuit.

January 22, 1936.

Thomas A. Cunniff, of St. Petersburg, Fla., for appellant.

Gates Ivy, of Tampa, Fla., for appellee.

Before FOSTER, SIBLEY, and WALKER, Circuit Judges.

SIBLEY, Circuit Judge.

Appellant, plaintiff in the court below, complains of the dismissal on demurrer of his declaration in an action at law to recover for the theft on December 31, 1931, of merchandise while transported by means of his own automobile and trailer. The declaration alleges the making by defendant for a consideration of $125 of a policy of insurance against loss by fire or theft of plaintiff's merchandise to be shipped during a term from September 8, 1931, to September 8, 1932; the policy being annexed and made a part of the declaration. That policy states that the risk attaches only while merchandise is in transit and is in the custody of a railroad or railroad express company or certain lines of steamers and "public truckmen, private truckmen, (including trucks owned and/or operated by and/or for the assured), and/or land transfer and/or transportation companies, provided these carriers are used in connection with railroad, railroad express and/or the above provided steamer shipments." The policy also states: "And no officer, agent or other representative of this Company shall have power to waive any of the terms of this policy unless such waiver be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the assured unless so written or attached." The declaration further alleges that, subsequent to the issuance of the policy and before loss, plaintiff determined to ship some of its goods by its own automobile and trailer and "consulted with Almand & Chapman, Inc., a corporation, the general agent of the insurer, informing it of the change in the mode of transportation of a portion of its goods and requesting that insurance be issued to cover the additional mode of transportation in addition to the modes already in use. Thereupon Almand & Chapman, Inc., the aforesaid general agent of the defendant Company, assured the plaintiff that they would cover the new manner of transporting the goods in addition to the risks theretofore assumed by the defendant under the policy of insurance then in force, and that plaintiff was covered from that time." The grounds of the demurrer are to the effect that this verbal negotiation fails as a modification of the old policy for want of an attached writing, and that, as an independent oral contract, it fails because no consideration is alleged, and that only an executory promise of the agent to issue insurance appears.

If the pleading be construed strongly against the pleader, it might be held that the last-quoted words, "Plaintiff was covered from that time on," are but a conclusion of the pleader, and that only an individual promise to issue some sort of policy was made by Almand & Chapman, Inc., and not as defendant's agent, those words being only descriptio personæ But we prefer to assume that it is intended that Almand & Chapman, Inc., acting as the agents of defendant and having...