Continental Ins. Co. v. Fire Ass'n

• Decision Date: 26 November 1945
• Docket Number: No. 10016.,10016.
• Citation: 152 F.2d 239
• Parties: CONTINENTAL INS. CO. OF CITY OF NEW YORK v. FIRE ASS'N OF PHILADELPHIA.
• Court: U.S. Court of Appeals — Sixth Circuit

152 F.2d 239 (1945)

CONTINENTAL INS. CO. OF CITY OF NEW YORK v. FIRE ASS'N OF PHILADELPHIA.

No. 10016.

Circuit Court of Appeals, Sixth Circuit.

November 26, 1945.

Paul H. Heineke, of Chicago, Ill. (Thompson, Hine, & Flory and Thomas E. Lipscomb, all of Cleveland, Ohio, and Paul H. Heineke, of Chicago, Ill., on the brief), for appellant.

James V. Suhr, of Cleveland, Ohio (Kitchen & Messner, F. A. Messner, and James V. Suhr, all of Cleveland, Ohio, on the brief), for appellee.

Before SIMONS and ALLEN, Circuit Judges, and RAYMOND, District Judge.

RAYMOND, District Judge.

This is an appeal from an order of the United States District Court for the Northern District of Ohio granting defendant's motion to dismiss the complaint upon the grounds that it fails to state a claim against the defendant upon which the relief prayed could be granted.

The complaint, which, for the purposes of the motion, must be accepted as true, alleges in substance that prior to December 23, 1941, the Rotor Tool Company (hereinafter referred to as "Rotor") delivered to the Wellman Bronze and Aluminum Company (hereinafter referred to as "Wellman") certain patterns and core boxes, to be used by Wellman in the manufacture of merchandise for Rotor; that on April 15, 1941, plaintiff issued to Rotor an insurance policy insuring it against loss by fire on patterns, drawings, jigs and dies, their own, or for which they are liable, all while located within the United States or Canada, but excluding their main place of business in Cleveland, Ohio. The policy contained the provision that if any specific property included in the terms of the policy be insured otherwise, "this policy shall not extend to cover the same excepting only as far as refers to any excess of value beyond the amount of such specific insurance or insurances, and shall not be liable for any loss unless the amount of such loss shall exceed the amount of such other insurance or insurances, which said excess only is declared to be under the protection of this policy."

The complaint further alleges that on November 6, 1941, defendant issued its policy to Wellman in the sum of $50,000, covering the property of others, held in trust or on consignment, or for which assured may be legally liable only while contained in the premises of the assured.

The complaint further alleges that on December 23, 1941, certain patterns and core boxes, the property of Rotor, of the value of $5345.64, while in the possession of Wellman, were destroyed by fire; that plaintiff has loaned to Rotor $5000, in accordance with a loan receipt whereby Rotor assigned any claim it had under the policy issued by defendant to Wellman.

The complaint further alleges that after the fire, Wellman informed Rotor that it was presenting claim under the policy issued to it by defendant, for the value of the property of Rotor which was in its possession and which was destroyed by fire, and which was of the value of $5345.64; that at that time Wellman was of opinion that the value of the property was but $1968.87; that upon receipt of information that Wellman intended to file claim for the latter amount, it (Wellman) was advised that the correct amount of the claim for which it should make claim was $5345.65.

The complaint then alleges:

"* * * that thereupon and from time to time until after the 23rd day of December, 1942, negotiations were carried on between the adjusters for the Fire Association of Philadelphia and the representatives of the Wellman Bronze and Aluminum Company and of the ...