American Ins. Co. v. Gentile Bros. Co.

• Decision Date: 15 March 1940
• Docket Number: No. 9261.,9261.
• Citation: 109 F.2d 732
• Parties: AMERICAN INS. CO. v. GENTILE BROS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

109 F.2d 732 (1940)

AMERICAN INS. CO. v. GENTILE BROS. CO.

No. 9261.

Circuit Court of Appeals, Fifth Circuit.

February 9, 1940.

Rehearing Denied March 15, 1940.

Edgar John Phillips and Harry L. Thompson, both of Clearwater, Fla., for appellant.

Hugh Akerman and William H. Dial, both of Orlando, Fla., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

On application The American Insurance Company issued its policy of insurance to Gentile Brothers Company, a corporation. The policy issued in July, 1937, insured against loss by freeze, tornado, and windstorm to citrus fruits on twenty-five groves in the Florida citrus belt.

The insurance contract was clear, explicit, and unambiguous. The amount of insurance under the policy was $150,000; the subject of the coverage was the citrus fruit on twenty-five named and described groves; the citrus fruit was described as oranges, grapefruit, and tangerines. The policy covered tangerines and Temple Oranges up to and including January 15, 1938. Other citrus fruits were covered to March 15, 1938, with the exception of Valencia Oranges and Marsh Seedless Grapefruit which were covered to April 15, 1938. Coverage for damage by freeze extended only to the fruit on trees and did not apply unless the extent of the damage was ten per cent or more. In the event of damage by freeze to the extent of ten per cent or more it was expressly provided that the remaining fruit in the orchards, "damaged and undamaged", was to be salvage; that the insured was to have the remaining fruit harvested and, after deducting the cost of harvesting and selling, account to The American Insurance Company for the proceeds of sale. Before the contract of insurance was entered into the number of boxes of fruit on the trees was estimated by experts representing both parties, and it was agreed by the insurer that there were 187,500 boxes on the trees.

Each box of fruit on the trees was insured for 80¢ as is shown in a typewritten rider attached to the policy and which carries this clause: "Total Number of Boxes — 187,500 insured for 80¢ per box for total liability of $150,000.00. Rate 5% Premium $7500.00." Signed in ink "J. T. Branham, Special Agent."

In December, 1937, a severe freeze damaged fruit in the groves much above the ten per cent designated by the policy. On April 17, 1938, Gentile Brothers Company submitted its proof of loss to the insurance company. This notice showed that 47,681 field boxes had been harvested before the freeze leaving 139,819 boxes on the trees covered by the policy, and that this remaining unharvested fruit had been salvaged and disposed of for $26,537.94.

The insurance company failed and refused to pay on demand the amount of insurance, less salvage, on the 139,819 boxes of fruit which remained on the trees at the time of the freeze. On June 1, 1938, Gentile Brothers Company filed suit against The American Insurance Company in the Circuit Court of Orange County, Florida. It filed its declaration on July 2, 1938, and on motion the cause was removed to the District Court of the United States for the Southern District of Florida. After removal the defendant filed its motion to dismiss and a motion for a more definite statement in the complaint. These motions were heard by the court and denied on October 31, 1938. On the Rule Day in December the defendant filed its answer consisting of four defenses. The plaintiff moved to dismiss the counterclaim set up in the fourth defense and to strike portions of the answer. These motions, except as to a portion of the second defense, were granted on December 27, 1938. On January 16, 1939, the defendant filed its amended answer consisting of six defenses. The plaintiff moved to strike portions of the amended answer and the court granted the motion on March 30, 1939. Thereafter the defendant filed a seventh defense which was stricken on motion on May 26, 1939. After these many delays and on July 5, 1939, the plaintiff filed its motion for summary judgment.

On April 25, 1939, after proper notice, the defendant took depositions of the witnesses G. D. Murrill and J. E. Stewart, the men who had estimated the box yield of the groves. The depositions were taken by agreement of counsel at the offices of the plaintiff's attorneys. In its motion for summary judgment the plaintiff set out the condition of the pleadings, and the fact that the depositions on file showed conclusively that at the time of the freeze there were 187,500 boxes of fruit on the groves less any and all fruit that had been harvested and shipped prior to the freeze. The motion further recited that the supporting affidavits of Fred D. Frey, Chief Clerk of Gentile Brothers Company, and A. R. Davenport, Secretary-Treasurer of Tree-Gold Cooperative Growers of Florida, showed clearly that up to the date of the freeze 47,681 field boxes of fruit had been harvested and shipped from the groves; that on this basis there were 139,819 unharvested boxes on trees when the freeze came; and that the affidavit of Victor Gentile, Vice-President of Gentile Brothers Company showed that proper proof of loss had been submitted to the insurance company and receipted for by its duly authorized representative.

A copy of the motion for summary judgment and the exhibits were served on counsel for The American Insurance Company. The defendant did not file counter-affidavits controverting the facts set forth in the depositions and affidavits, and made no effort to show that controverting facts, if any, could be presented at a later time. The motion for summary judgment was heard and, after argument of counsel and due consideration of the contents of the depositions, affidavits, and pleadings, the court entered judgment for the plaintiff and The American Insurance Company brings this appeal.

The policy of insurance is made a part of the declaration of the plaintiff. The appellant's attack on the sufficiency of the declaration is without merit.

The appellant contends that its contract of insurance is an "open policy"...