Fellman v. Royal Ins. Co.

• Decision Date: 24 January 1911
• Docket Number: 2,003.
• Citation: 184 F. 577
• Parties: FELLMAN v. ROYAL INS. CO. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

184 F. 577

FELLMAN v. ROYAL INS. CO. ^[1]

No. 2,003.

United States Court of Appeals, Fifth Circuit.

January 24, 1911

Edgar H. Farrar, Abraham Goldberg, J. Blanc Monroe, and Harry H Hall, for plaintiff in error.

Donelson Caffery, Lamar C. Quintero, and Philip S. Gidiere, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

In the year 1900 the plaintiff in error was the owner of a building in New Orleans of the rental value of $700 a month. On the 13th day of July, 1900, the Lancashire Insurance Company issued to her a policy of insurance for the sum of $8,400, 12 months rent, to protect her from loss of rent in the event that the building should be rendered untenantable by fire so as to cause an actual loss of rent. On the 21st of August of that year the Royal Insurance Company issued its policy to insure her for the term of one year from the 22d of August 1900, against all direct loss or damage by fire to an amount not exceeding $15,000 on the same building, and on the 27th of September, 1900, the London & Lancashire Fire Insurance Company issued its policy to insure her for the term of one year from the 30th of September against loss or damage by fire on this building to an amount not exceeding $5,000. On March 25, 1901, the building was destroyed almost totally by fire. Due notice was given by the insured and proof of loss delivered to the companies, and the only question touching their liability for the same related to the amount of the loss occasioned by the fire. As to this, the insured and the representatives of the insurance companies could not agree and in accordance with the terms of each policy appraisers and an umpire were appointed, who made their award August 1 1901. This award was not satisfactory to the assured, especially in reference to the loss on the building. It was satisfactory to the insurers, who, through their duly authorized representatives, admitted their liability for the amounts awarded, and on August 14, 1901, duly tendered the amount to the counsel for the insured. The tender was not accepted, and on January 16, 1902, the plaintiff in error filed her bills in the Circuit Court for the Eastern District of Louisiana against the Royal Insurance Company and the London & Lancashire Insurance Company to correct the award of the appraisers as to the amount of their liability. The subject-matter of these suits being identical and the parties substantially so, the suits were, for the purposes of the hearing, treated as one. The same special master was appointed to act in each, and the cases were fully heard by him. On March 21, 1906, he made an exhaustive report announcing his conclusions of law and fact, accompanied by a full statement of the evidence. His report and the exceptions thereto came on to be heard before the judge resulting in a decree, passed December 15, 1906, enlarging the amount of the award as to the damage on the building. From this decree the insurers appealed to this court. The decree was affirmed.

The plaintiff in error having brought this suit, her pleading in this case avers substantially: That she had a policy in the Lancashire Company for $8,400, covering rents on property described; that the property was rented for $700 per month, and was destroyed by fire on the 25th of March, 1901, while the policy was in force; that the defendant company called for appraisement under the terms of the policy, and accordingly an appraisement and award was duly had and made; that this appraisement and award covered not only the loss on the policy sued on in respect to the rents, but also the amount due for loss on the building accruing under other policies in other companies; that the award of the arbitrators and umpire fixed the rent loss at 100 days; that plaintiff filed a bill in equity in this court against each of the other companies, parties to the award, to set aside the same in so far as it affects and fixes the amount on the building; that the Lancashire Company was not a party to those suits, and that the plaintiff is willing to accept the award on the rents; that since the loss of her building by fire, as herein described, and the award by the appraisers, the Lancashire Insurance Company has been bought out and succeeded by the Royal Insurance Company and the Royal Insurance Company has become liable for this award; that she had made due demand upon the insurance companies to pay the amount of rent awarded by the appraisers, but without avail. She made a part of her petition as exhibits the policy, the agreement to submit to award, and the award.

The pleading of the defendant in error (defendant below) we give in full:

'And now into court comes the defendant company by and through its undersigned counsel, and before answering to the merits of this cause, and specially reserving its rights so to do, does now except to the petition of plaintiff, for that, by the terms of the policy described in plaintiff's petition, the plaintiff stipulated and agreed and bound herself that: 'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the assured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.'And the plaintiff's petition shows that the property claimed to be insured and injured by the fire or the casualty, which was insured against, happened on the 25th of March, 1901, and plaintiff's petition in this suit was filed in this court on the 18th day of June, 1906, more than three years after the plaintiff's right of action by her contract was lost or had ceased to exist.

'Further excepting, the defendant shows that, if the plaintiff claimed by virtue of an award made by appraisers, the plaintiff is estopped from making or setting up any such claim, because she has repudiated this award before this court, and has refused to stand thereon and does not abide by the same.

'Wherefore, respondent prays that this exception be maintained, and that plaintiff's suit be dismissed at her cost.'

There was no substantial dispute about the actual facts involved in the dealing of the parties as set out in the plaintiff's petition. The appraisement and award were duly had and made as alleged, and on the 14th day of August, 1901, the proper representatives of the several insurance companies made to the counsel of the plaintiff a tender of what they claimed as due under the policies held by the plaintiff in all three of the companies covering the loss of the building and the loss of the rents. The amount of the tender for the rent being the sum of $2,311.12, such companies claiming that the amount tendered was the amount due as per the report of the appraisers and umpire. The counsel for plaintiff declined to receive the amount tendered, but agreed with the parties making the tender, although made by draft, that it should be considered as if made in lawful money of the United States with all due form of law.

The cause came on for hearing before the judge May 31, 1907, and was argued by counsel for the respective parties and submitted, and the court took time to consider, and, after due consideration on January 3, 1908, the court ordered, adjudged, and decreed that the plea of defendant the Royal Insurance Company, of Liverpool, England, filed herein be sustained, and that the demand of the plaintiff, Mrs. Anna Dreyfous, widow of the late Bernard Fellman, be rejected and her suit be dismissed, with costs. The plaintiff in error (plaintiff below) made her motion for a new trial, which was overruled, whereupon she sued out a writ of error, and duly assigned:

'That the court erred as a matter of law on the face of the record in sustaining defendant's plea that the suit was barred by that clause in the policy requiring the assured to bring an action on the policy within twelve months next after the fire, because the following facts were agreed to by the parties:

'(a) That it was agreed by the parties that while Exhibit C, known as 'agreement for submission to appraisement and award,' does not by its terms include the policy herein sued on, yet it was verbally agreed between the parties to this case that the appraisers and the umpire should consider and pass on the time necessary to rebuild, and that their finding should fix the number of days necessary to rebuild the buildings, to be used in fixing the amount of loss under the policy sued on in this case, and the award shows that such a finding was made.

'(b) That on the 14th day of August, 1901, after the said award was made, the defendant company made to the counsel of the plaintiff a tender of the sum of $2,311.12, the amount claimed by it to be due by the defendant under the award aforesaid as loss under the policy sued on in this case for insurance on the rents of the property, which tender the said counsel refused. There is no proof or suggestion that this tender was ever withdrawn.

'The court erred as a matter of law on the face of the record in sustaining the defendant's plea of estoppel from claiming under the award of the appraisers

on the ground that she had repudiated said...