Greenwich Ins. Co. v. N. & M. Friedman Co.

• Decision Date: 13 November 1905
• Docket Number: 1,414.
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: GREENWICH INS. CO. v. N. & M. FRIEDMAN CO.

142 F. 944

GREENWICH INS. CO. v. N. & M. FRIEDMAN CO.

No. 1,414.

United States Court of Appeals, Sixth Circuit.

November 13, 1905

H.W Fraser and G. D. Willis, for plaintiff in error.

N.S Monsarrat, for defendant in error.

BEFORE LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This is another of the cases growing out of the destruction, early on the morning of July 18, 1901, of the Luce Block, in Grand Rapids, Mich. The occurrence resulting in the destruction of this building and its contents was before us in the case of the Phenix Insurance Company v. Luce, 123 F. 257, 60 C.C.A. 655, and in the case of the Liverpool & London &amp Globe Insurance Company v. N. & M. Friedman Company, 133 F. 713, 66 C.C.A. 543. In the first case the insurance was on the building, and in the second on the contents. In each case liability was denied on the ground that the building fell before the fire began, and not as a result of the fire. In both cases the jury found against this contention. The judgments were affirmed by this court. There was also a suit on a policy on the stock of the Friedman Company brought in the state court, that against the Atlas Assurance Company. The same defense was made, that the building did not fall in consequence of fire, but before the fire, with the same result, a verdict and judgment for the plaintiff, which was affirmed by the Supreme Court of Michigan. N. & M Friedman Co. v. Atlas Assurance Co., 133 Mich. 212, 94 N.W. 757.

The present case, which was one on a policy for $3,000 on the stock, was tried before the court without a jury upon a stipulation of facts and certain evidence tending to show that the plaintiff below had knowledge of the defendant's agreement to share in the expenses of contesting the Atlas and Liverpool & London & Globe cases, and to bear proportionately the costs in case of defeat. Upon this agreed statement of facts and the evidence referred to, the court below found that the defendant was estopped from denying liability under its policy.

The stipulation of facts is as follows:

'The plaintiff is a corporation under the laws of Michigan, and on July 18, 1901, was conducting a department store at Grand Rapids, Mich. That on said day plaintiff had in its said store a stock of goods of the value, after deducting all salvages remaining after the fire hereinafter referred to, of at least $92,827.75, and furniture and fixtures of the value of $5,564.11. That on said July 18, 1901, it had concurrent insurance on said stock of goods to the amount of $100,000 in divers companies, whereof the defendant was one, and including the Atlas Assurance Company, Limited, of London, England, and the Liverpool & London & Globe Insurance Company hereinafter referred to, all of said policies being in the Michigan Standard form, and all containing identical provisions governing the liability of the insurers; the premium rates on all said policies being the same. That on said July 18, 1901, plaintiff held defendant's Michigan Standard form insurance policy in the amount of three thousand dollars ($3,000) on said stock, being the policy above referred to, the material portions of said policy being as follows:

''No. 945,715. $3,000.

"The Greenwich Insurance Company of the City of New York. In consideration of the stipulations herein named and of Twenty-Seven and no-100 Dollars premium does insure N. and M. Friedman Company, for the term of one year from the first day of February, 1901, at noon, to the first day of February, 1901, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding Three Thousand Dollars to the following

described property while located and contained as described herein, and not elsewhere, to wit: N. & M. Friedman Company, Successor to N. & M. Friedman. Three Thousand Dollars. $3,000.

"On their wholesale and retail stock of merchandise, consisting principally of dry goods, cloaks, wraps, carpets, curtains, draperies, fixtures and poles, toys, notions, ladies' and gents' furnishing goods, millinery and piece goods, and other merchandise, not more hazardous; their own or held by them in trust, or on commission, or sold but not removed, and for which they must be in packing and shipping goods; all while contained in and under sidewalks adjoining, and in show windows of, the four-story and basement brick and stone buildings, situated at Nos. 70 and 72 Monroe Street.

''This Company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value with the proper reduction for depreciation however caused, and shall in no case exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. * * *

"The sum for which this Company is liable, pursuant to this policy, shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of loss have been received by this Company, in accordance with the terms of this policy. * * *

"This Company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion * * * or (unless fire ensures, and in that event for damage by fire only), by explosion of any kind. * * *

"If a building or any part thereof fall except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease. * * *

"This policy shall be canceled at any time at the request of the insured; or by the Company, by giving five days notice of such cancellation. If this policy shall be canceled as hereinbefore provided or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this Company retaining the customary short rate; except when this policy is canceled by this Company by giving notice, it shall retain only the pro rata premium.

"This Company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance whether valid or not, or by solvent or insolvent insurers covering such property.'

'On July 18, 1901, plaintiff's said stock was damaged or destroyed by fire to at least the net amount of $92,827.75 above salvage, the plaintiff claiming that said loss and damage occurred while said policy was in force, and defendant claiming that such loss and damage by fire occurred after its said policy had ceased to be of any force or effect, by reason of the building containing said stock having fallen without the agency of fire, and before any such fire loss or damage occurred; and this admission shall not be construed as admitting any fire loss or damage while said policy was in force.

'Prior to the commencement of suit herein, after plaintiff had given notice of claim for loss, and before the furnishing by plaintiff to the various insurers of proofs of loss under its said policies, this defendant, together with the Liverpool &amp London & Globe Insurance Company, and the Atlas Assurance Company, and other companies, whose policies of insurance in like form were held by plaintiff, held a meeting and employed Mark Norris and Albert Crane, hereinafter named, to examine into the circumstances of the fire, and after the proofs of loss were furnished by plaintiff to the various insurers held another meeting, and after collectively canvassing the reported circumstances of plaintiff's claim decided to defend against plaintiff's claim under their policies on the ground that the building containing plaintiff's stock fell without the agency of fire, and that none of plaintiff's stock was destroyed or damages by fire until after the building fell. Said insurance companies thereupon agreed among themselves to pay pro rata to the amounts of their several and respective policies the costs and expenses of such contests, and appointed John H. Law, one of the managers of the Western Department of the Royal Insurance Company, S. A. Rothermel, secretary of the Traders' Insurance Company, and J. P. Hubble, general agent of the Greenwich Insurance Company, a committee to employ counsel on behalf of all contesting companies; said counsel to take charge of and contest all such suits for recovery under policies issued by said...