Feldman v. North British & Mercantile Ins. Co., 5092.

• Decision Date: 30 July 1943
• Docket Number: No. 5092.,5092.
• Citation: 137 F.2d 266
• Parties: FELDMAN v. NORTH BRITISH & MERCANTILE INS. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

137 F.2d 266 (1943)

FELDMAN v. NORTH BRITISH & MERCANTILE INS. CO. et al.

No. 5092.

Circuit Court of Appeals, Fourth Circuit.

July 30, 1943.

Louis M. Shimel, of Charleston, S. C., and Claud N. Sapp, of Columbia, S. C. (Shimel & Rittenberg, of Charleston, S. C., on the brief), for appellant.

Stephen Nettles, of Greenville, S. C. (John I. Cosgrove, of Charleston, S. C., on the brief), for appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

Ben Feldman, a citizen of South Carolina, brought suit against two insurance companies, North British & Mercantile Insurance Company and New York Fire Insurance Company upon two causes of action charging: (1) conspiracy to accuse him falsely and maliciously of setting fire to his store in Summerton, South Carolina, and to procure his prosecution for the alleged offense, and (2) actually making the false and malicious accusation and procuring his arrest and prosecution on the charge, as the result of which he was arrested, given a preliminary hearing and discharged for lack of evidence. The District Judge, being of the opinion that the plaintiff had no case, directed a verdict for the defendants.

The evidence tended to show the following facts: Feldman had lived in Summerton for eighteen years and for two or three years had operated a small retail clothing and shoe store in which he also repaired shoes. In addition, he operated a separate retail liquor store. In August, 1935, the stock of goods in the dry goods and shoe store was worth $3,000, upon which he owed about $50. His stock in the liquor store was worth about $3,000 and was not insured. Insurance rates had been high in Summerton because there were no waterworks in the town. In June, 1935, after the waterworks had been established, a jobber in Charleston with whom Feldman was dealing, suggested that he should take out some insurance and Feldman, after first being refused a policy of $500 on account of its small size, secured a policy for $900 on the stock of goods and $100 on the shoe repairing machinery from the Charleston agent of the North British Company. The policy of insurance was not received by Feldman until some hours after a fire had occurred at 2 A. M. on Sunday, August 4. Feldman had closed and locked the store at midnight, Saturday, and after a few minutes' relaxation with some friends had reached his home at 12:30 A. M. At 2 A. M. the fire was discovered and he was sent for and found the door locked. He offered no explanation of the fire except to tell the firemen that some one had set fire to the store. Feldman kept a five gallon can of shoe oil, a can of shoe blacking and a can of cement and cement thinner in the store for use in connection with shoe repairing.

The defendant insurance companies were members of the National Board of Fire Underwriters, an unincorporated association composed of two hundred and five insurance companies doing business throughout the United States. Among the objects of the association is to repress incendiarism and arson by combining in suitable measures for the apprehension, conviction and punishment of persons guilty of that crime; to gather and record statistics, establish classification of hazards and losses for the interest of the members and the public so as to reduce the fire waste of the country, and to conserve and promote the interest of the members and their policyholders by all proper and lawful means. When an insured has a fire, it is the practice for the insurance adjuster or the State Fire Marshal to report the fire to the association. The information is furnished by the insurance company directly or through its adjuster to the State Fire Marshal and generally the report of the fire is made by the insurance company which issued the policy covering the loss. If the association has any information in respect to an applicant for insurance, it furnishes the same to the member requesting it. The gathering of these reports and the furnishing of this information is part of the activity of the association.

Two or three days after the fire, the insurance adjuster came to see Feldman and offered him $150 in settlement for the loss, saying that he could offer no more without an estimate of value of a salvage man. Two weeks later, after a conference between the adjuster, a salvage man, the plaintiff and his attorney, the loss was adjusted for $875 which was paid to the plaintiff in October. The...