Hanney v. Franklin Fire Ins. Co. of Philadelphia, 10647.
| Decision Date | 24 May 1944 |
| Docket Number | No. 10647.,10647. |
| Citation | 142 F.2d 864 |
| Parties | HANNEY et al. v. FRANKLIN FIRE INS. CO. OF PHILADELPHIA. |
| Court | U.S. Court of Appeals — Ninth Circuit |
C. E. H. Maloy, of Seattle, Wash., for appellants.
Lane Summers, Matthew Stafford, and Hayden, Merritt, Summers & Bucey, all of Seattle, Wash., for appellee.
Before STEPHENS and HEALY, Circuit Judges, and FEE, District Judge.
Appellants sued in the district court to recover for a loss upon a policy of insurance issued by appellee. Their amended complaint contained two counts the first of which attempted to state a claim on the policy as written. The second sought reformation. The court granted appellee's motion to dismiss the first count on the ground of its failure to state a claim upon which relief can be granted. A judgment of dismissal directed to this count was then entered, and the appeal is from this judgment. Following the entry of the judgment and prior to appealing from it appellants voluntarily moved for and obtained the dismissal of their second count, with prejudice.
Appellee has moved to dismiss the appeal on the ground that the judgment appealed from was not final, citing in support of the motion the text of Rule 54(b) of the Rules of Civil Procedure, 28 U.S. C.A. following section 723c. The motion is without merit and is denied. The two counts, while growing out of the same subject matter, involved distinct claims, Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478; Modin v. Matson Nav. Co., 9 Cir., 128 F.2d 194. In any event it is clear that having obtained a dismissal of their second count appellants were entitled to appeal from the adverse judgment dismissing the first.
The first count, following the usual jurisdictional averments, alleged that on August 20, 1941, and at all times thereafter, appellants were the owners of the halibut boat called the hull No. 20, then being built at Brown's Point, Tacoma, Washington; that being desirous of effecting insurance against risks, including fire on the vessel and upon all materials, apparel, appurtenances, and so forth, acquired or to be acquired or accumulated for and belonging to and destined for said vessel, appellants obtained from appellee and paid the premium upon a policy of insurance, copy of which is attached to the complaint. The pleading avers that this policy was in force from August 20, 1941, to and including February 24, 1942; that in September 1941 and to and including the following February appellants were the owners of tackle, apparel, furniture, fixtures, and material "which belonged to and was destined for the halibut boat then being built, all of which property was covered by the provisions" of the policy, and all of which "was stored in locker No. 325 at the Salmon Bay Terminal of the Port and City of Seattle, Washington"; that appellants were the exclusive owners and in the exclusive possession and control of the locker mentioned and the personal property stored therein, the same being there held for the express purpose of being attached to and used upon and in the operation of the halibut boat and in the equipping and building thereof; and that on the date last mentioned all of the described material was destroyed by fire.
While the trial court did not state the grounds of its ruling, its view concededly was that equipment destined for the vessel, in storage at a place other than the Port of Tacoma, was not within the risk insured against. The "Builders' Risk — Form 50 — Amended,"...
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