Connecticut Fire Ins. Co. v. Manning
Decision Date | 14 March 1910 |
Docket Number | 3,127. |
Citation | 177 F. 893 |
Parties | CONNECTICUT FIRE INS. CO. v. MANNING et al. |
Court | U.S. Court of Appeals — Eighth Circuit |
Shepard Barclay (P. H. Cullen and Thomas T. Fauntleroy, on the brief), for plaintiff in error.
Edward Robb, for defendants in error.
Before SANBORN, Circuit Judge, and RINER and WM. H. MUNGER, District judges.
WM. H MUNGER, District Judge.
For convenience, plaintiff in error will be designated as defendant and defendants in error as plaintiffs. Plaintiffs commenced an action in the proper state court of Missouri to recover for a loss upon a policy of fire insurance. The cause was removed into the Circuit Court of the United States where issues were joined, trial had, verdict and judgment for the plaintiffs. Defendant prosecuted error to this court, and the cause was reversed (160 F. 382, 87 C.C.A. 334), this court holding that one of the conditions of the policy, to wit-- 'if the interest of the assured be or become other than the entire, unconditional, unincumbered, and sole ownership of the property, * * * this policy shall be void unless otherwise provided by agreement indorsed thereon'-- constituted a warranty; that, as there was an incumbrance thereon by a trust deed, to secure the payment of a promissory note for $500, such incumbrance was material to the risk as a matter of law, and the court should not have submitted the question to the jury.
The cause was remanded for a new trial. Thereafter, defendant filed its motion in the trial court for judgment on the pleadings, which motion was overruled, and plaintiffs made application for leave to file an amended reply, which was granted; the amended reply seeking to avoid the effect of the decision of this court by alleging knowledge of such incumbrance on the part of defendant's agent at the time of issuing the policy of insurance and accepting the premium therefor. When the cause was reached for trial, the plaintiffs took a nonsuit . At the same term, and within four days thereafter, defendant filed a motion to set aside said nonsuit, for various reasons stated, which motion was by the court overruled, and defendant excepted, and brings the case to this court by writ of error. Plaintiffs have filed a motion to dismiss the writ of error for the reason that the judgment of nonsuit was not a final judgment.
The motion to dismiss is overruled. The judgment of nonsuit was a final one as to that case. The fact that it may not be res adjudicata of the merits of the controversy between the parties, and that the plaintiffs are not thereby estopped from bringing a new action founded on the same subject-matter, does not prevent the judgment of nonsuit being a final judgment of the Circuit Court with respect to the then pending case. A writ of error from a judgment of nonsuit was entertained by this court in Chicago, M. & St. P. Ry. Co. v. Metalstaff, 101 F. 769, 41 C.C.A. 669. Such is the practice in some of the state courts. Bee Bldg. Co. v. Dalton, 68 Neb. 38, 93 N.W. 930.
By section 639 of the Revised Statutes of Missouri of 1899 (Ann. St. 1906, p. 658) it is provided:
'The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury or to the court sitting as a jury, or to the court, and not afterwards.'
In numerous decisions by the Supreme Court of the state of Missouri the above statute has been construed to permit the plaintiff to take a nonsuit at any time before the case has been actually submitted to the jury, although even after the close of all the evidence a motion to direct the jury to return a verdict for the defendant has been by the court sustained, but where the jury have not actually been so instructed and retired.
Chicago, M. & St. P. Ry. Co. v. Metalstaff, supra, involved the identical question presented here. Judge Thayer, in that case, after referring to the foregoing statute of Missouri, said:
In Francisco v. Chicago & A.R. Co., 149 F. 354, 357, 79 C.C.A. 292, 295, this court, speaking by Judge Sanborn, said:
By these decisions this court is committed to the rule that, by the conformity act of Congress (section 914, Rev. St. (U.S Comp. St. 1901, p. 684)), it will follow the established practice of the state court with respect to the right of a party to take a nonsuit. Such, also, is the holding in the Seventh Circuit. ...
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Manning v. Connecticut Fire Insurance Company
... ... R. Gilbert and Barclay, Fauntleroy & Cullen for ... appellant ... (1) The ... court erred in overruling the demurrers to the evidence. It ... is admitted that the policy was avoided by the mortgage and ... no facts are proven which show a waiver. Oehler v. Ins ... Co., 159 Mo.App. 708; Francis v. Lodge, 150 ... Mo.App. 347. (2) An agent for writing insurance has no ... authority to adjust or in any way to represent the company ... after a loss. Hauser v. Ins. Co., 66 Mo.App. 30. An ... agent authorized to collect premiums, in advance, cannot by ... ...
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State ex rel. County of Buchanan v. Fulks
... ... same. R.S. 1909, secs. 1979, 1980; Conn. Fire Ins. Co. v ... Manning, 177 F. 893; Luse v. Luse, 144 Iowa ... 393; ... ...
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Boatmen's Bank v. Trower Bros. Co.
... ... see note to Nederland Life Ins. Co. v. Hall, 27 ... C.C.A. 394.) ... Although ... the statute ... 277, 281, 15 Sup.Ct. 450, ... 39 L.Ed. 424; City of Manning v. German Ins. Co., ... 107 F. 53, 55, 57, 46 C.C.A. 144, 146, 148; ... United ... States, 168 F. 841, 843, 94 C.C.A. 253, 255; ... Connecticut Fire Ins. Co. v. Manning (C.C.A.) 177 F ... 893, 896 ... Nor ... ...
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...to have been fully established prior to the nonsuit, and was obviously aggrieved by the loss of that judgment. Connecticut Fire Ins. Co. v. Manning, 8 Cir., 177 F. 893; Massachusetts Fire & Marine Ins. Co. v. Schmick, 8 Cir., 58 F.2d 130; Iowa-Nebraska L. & P. Co. v. Daniels, 8 Cir., 63 F.2......