Camden Fire Ins. Ass'n v. Di Giovanni
| Decision Date | 18 March 1935 |
| Docket Number | No. 10062.,10062. |
| Citation | 75 F.2d 808 |
| Parties | CAMDEN FIRE INS. ASS'N v. DI GIOVANNI et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Walter A. Raymond, of Kansas City, Mo. (Hume & Raymond and Fenton Hume, all of Kansas City, Mo., on the brief), for appellant.
James Daleo, of Kansas City, Mo., for appellees.
Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.
This is a suit in equity brought by appellant, Camden Fire Insurance Association, seeking the cancellation of two fire insurance policies. Appellees, defendants below, are husband and wife. One of the insurance policies involved is for $3,000, and covers a two-story brick building owned by both defendants, while the other policy is for $1,500, and covers personal property owned solely by the defendant Pete Di Giovanni, and both the policies insure against loss and damage by fire.
After alleging the issuance of these policies, it is alleged in the bill of complaint that at about the same time defendants procured a policy of fire insurance in the Eureka Security Fire & Marine Insurance Company upon this same building for $2,500, and one from the St. Louis Fire & Marine Insurance Company for $2,500, and one from the Old Colony Insurance Company for $5,000; also that they procured additional insurance upon the contents of the building, one policy from the Eureka Security Fire & Marine Insurance Company for $1,000, and one policy from the Old Colony Insurance Company for $3,200; that shortly after procuring these policies, and on the 13th of June, 1933, a fire occurred in the building; that all of the policies were procured from different agencies; that the plaintiff had no knowledge of the issuance of the other policies until after the fire; that the building was of a value not to exceed $6,000. It is then alleged that: "All of the aforesaid policies were procured by respondents as a part of a general scheme and plan to defraud this complainant and the other insurance companies named, and that in furtherance of said plan, the said respondents by and through their servants and agents, caused the said property to be set fire to on said date; that the said respondents procured insurance far in excess of the value of the building and its contents from different agencies, as a part of their general plan and scheme to defraud this said complainant and the other insurance companies, and in order that the respondents might set fire to the property and collect an exorbitant price for the building and its contents; that the said respondents represented to certain of the companies hereinbefore named, and to this complainant that they would not procure in excess of Five Thousand ($5,000.00) Dollars insurance on said building and that they would not procure in excess of Three Thousand Two Hundred ($3,200.00) Dollars insurance upon the contents; that the procurement by the respondents of the aforesaid policies and all of them, from different agencies, was done by the said respondents for the purpose of misleading complainant and the other insurance companies named, and as a part of the general scheme and plan of respondents to burn their property and collect a large sum of money; that immediately following this fire, complainant began an investigation of said fire loss, and has ascertained the facts hereinbefore set forth."
It is then alleged that defendants have filed proof of loss against all of said insurance companies, claiming the total loss, although the loss was not total, and they have threatened to sue complainant upon the two policies issued, to recover the face amount of the policies; that complainant has denied liability, after tendering the premiums paid, together with interest thereon; that it is the intention of defendants to use these policies as a means of consummating their fraudulent scheme, and that unless restrained they will institute two actions at law against complainant on these two policies; that title to the real estate stands in the name of Pete Di Giovanni and Mary Di Giovanni, husband and wife, as an estate by the entirety. Complainant prays for a decree declaring the policies void, and restraining the defendants from instituting suits thereon, and for a delivery of the policies to complainant upon the payment of the premiums and interest.
To this complaint, defendants filed a motion to dismiss on the ground that the court had no jurisdiction, that the bill did not state facts sufficient to constitute a cause of action in equity against defendants, either severally or jointly, and that it appeared from the bill that complainant was not entitled to any relief. This motion was sustained, and from the judgment of dismissal entered, the plaintiff prosecutes this appeal.
Appellees insist that the lower court was without jurisdiction, and, hence, properly dismissed the bill of complaint, because the matter in controversy does not exceed the value of $3,000. 28 USCA § 41. Neither of the policies sought to be canceled exceeds the amount of $3,000, and the policy covering the contents of the building was issued to defendant Pete Di Giovanni, although both defendants are alleged to have acted jointly and pursuant to their general scheme and plan to defraud plaintiff in securing same. The general rule is that jurisdiction cannot be conferred upon the federal court by joining claims against distinct and separate defendants, no one of which equals the jurisdictional amount. First State Bank v. Chicago, R. I. & P. R. Co. (C. C. A. 8) 63 F.(2d) 585, 90 A. L. R. 544, and cases there cited. But it is contended by appellant that the claims which the defendants threatened to assert against it are so tied together, by reason of the alleged conspiracy and concerted design, as to entitle it to aggregate these claims for the purpose of maintaining this suit in equity in the federal court.
The complaint charges a concerted design and purpose on the part of the defendants to defraud the plaintiff and other insurance companies, by taking out an exorbitant amount of insurance and then deliberately destroying the property for the purpose of creating apparent liability on the part of the plaintiff in the nature of claims for loss by fire, and both these policies were secured through the concerted action of defendants. We think the allegation of fraudulent combination and concerted design and action constituted a conspiracy which tied together the claims and made the aggregate of the claims the matter in dispute. Sovereign Camp, Woodmen of the World v. O'Neill, 266...
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Toucey v. New York Life Ins. Co.
...cancel, on the ground of fraudulent conspiracy, two fire insurance policies upon which loss had occurred before the suit was brought. 8 Cir., 75 F.2d 808. The policyholder had brought a law action in the state court on each of the two policies, neither of them amounting to three thousand do......
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Central Mexico Light & Power Co. v. Munch
...attempt to ruin the Society." In Di Giovanni v. Camden Fire Ins. Ass'n, 296 U.S. 64, at 68, 56 S. Ct. 1, at 3, 80 L.Ed. 47, reversing 8 Cir., 75 F.2d 808, the "peculiar doctrine" of the O'Neill case was said to apply only "where the conspiracy was to abuse the processes of the courts by the......