Jones v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 09 December 1939
• Docket Number: No. 9193.,9193.
• Citation: 108 F.2d 123
• Parties: JONES v. ST. PAUL FIRE & MARINE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

108 F.2d 123 (1939)

JONES v. ST. PAUL FIRE & MARINE INS. CO.

No. 9193.

Circuit Court of Appeals, Fifth Circuit.

December 9, 1939.

Dan MacDougald, of Atlanta, Ga., C. W. Kennedy, Jr., of Crockett, Tex., and Austin Y. Bryan, Jr., of Houston, Tex., for appellant.

L. E. Elliott, of Dallas, Tex., and W. L. Kemper, of Houston, Tex., for appellee.

Before FOSTER, SIBLEY, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

Homer Jones lost cotton by a fire. He had a policy of insurance on cotton with St. Paul Fire & Marine Insurance Company on which he had paid premiums amounting to $1,096, but as written it did not cover the lost cotton. Jones brought a bill in equity to reform the policy upon the ground of mutual mistake, and to recover his loss. He prayed for those things and general relief. The defendant resisted reformation and affirmatively set up breaches of warranty. Jones replied by denying the breaches and asserting waiver and estoppel. At the close of all the evidence the defendant orally moved for a decree on the ground that the evidence showed not a mutual mistake but a failure of minds to meet on any contract, and tendered return of the premiums paid. This motion stated that it was without prejudice to defences arising on the face of the policy. The District Court granted reformation, and gave a recovery for the value of the cotton. On appeal to this court there was a reversal because of a total failure to keep the cotton records warranted to be kept, unwaived and unestopped. No direction was given, but the case was remanded for further consistent proceedings: 5 Cir., 98 F.2d 448.

Ten days after the mandate was filed on Dec. 30, 1938, the Insurance Company filed a motion for a final decree in its favor because required by the opinion of this Court. At the same time Jones filed a motion for judgment in his favor for the $1,096 paid as premiums, both because it had been tendered back as above stated, and also because the undisputed evidence was, and this Court had held, that the failure to keep records had existed from the beginning, so that the policy was at once voided, and by a provision of the policy itself the unearned premium was to be repaid if the policy became void or ceased. Jones also filed without allowance by the judge, but with service on the opposite party, an amendment of his pleadings claiming as alternative relief the recovery of the premiums on the same grounds. The Insurance Company moved to dismiss the amendment because alleging a new and independent action not within the jurisdiction of the Court, and because setting up no case for relief; and to dismiss Jones' motion for judgment for like reasons. The judge later filed a memorandum opinion in which he treated the motions as motions for summary judgment under Rule of Civil Procedure 56, 28 U.S.C.A. following section 723c. He held that the Insurance Company was entitled to judgment on the original claim, but "I do not think the pleadings, depositions, admissions, affidavits on file (See Rule 56 (c) show plaintiff entitled to summary judgment." Reciting that the amendment did not yet have the court's permission, he held Jones should have the right to secure an order amending his pleadings, so as to set up a cause of action if any he has within the jurisdiction of the court, to be hereafter heard as other cases are heard, subject to be dismissed, stricken or otherwise objected to as prescribed by the Rules of Civil Procedure. A formal judgment was entered in accordance with the opinion. Jones...