McGehee v. Insurance Co. of North America

• Decision Date: 07 January 1902
• Docket Number: 1,036.
• Citation: 112 F. 853
• Parties: McGEHEE v. INSURANCE CO. OF NORTH AMERICA.
• Court: U.S. Court of Appeals — Fifth Circuit

112 F. 853

McGEHEE v. INSURANCE CO. OF NORTH AMERICA.

No. 1,036.

United States Court of Appeals, Fifth Circuit.

January 7, 1902

J. F Pierson, for plaintiff in error.

Chas P. Fenner and E. B. Kruttschnitt, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM.

The suit of John S. McGehee v. The Insurance Company of North America, No. 12,008, of the docket of the circuit court of the United States, Eastern district of Louisiana, was brought to recover on a fire insurance policy. The allegations in the answer filed in that suit, to the effect that the plaintiff had intentionally burned or procured to be burned the property, goods, and effects claimed to have been lost, and that in the proofs of loss the plaintiff had grossly and fraudulently overestimated their value, whereby the policy had been avoided, were relevant and pertinent as matters of defense, and are absolutely privileged. See Townsh. Sland. & L. Sec. 221; Folkard's, Starkie, Sland. Sec. 196; Odgers, Lib. & Sland. p. 141; Wilson v Sullivan, 81 Ga. 238, 7 S.E. 274; Gains v. Insurance Co. (Ky.) 47 S.W. 884; Abbott v. Bank (Wash.) 56 P. 376; Sherwood v. Powell (Minn.) 63 N.W. 1103 29 L.R.A. 153, 53 Am.St.Rep. 614; Jones v. Brownlee (Mo.) 61 S.W. 795, 53 L.R.A. 445; Johnson v. Brown, 13 W.Va. 119; Shelfer v. Gooding, 47 N.C. 181; Gardemal v. McWilliams, 43 La.Ann. 457, 9 So. 106, 26 Am.St.Rep. 195.

The judgment of the circuit court is affirmed.

McCORMICK, Circuit Judge (dissenting). I do not concur in the decision of the court in this case. The rule which the opinion announces is supported by the decisions of the state courts in certain of the states, and has been accepted by some of the more recent text writers. In my opinion, it has not been approved by the supreme court of Louisiana. I rest my dissent on what I recognize as the controlling authority of the supreme court, announced in the case of White v. Nicholls, 3 How. 266, 11 L.Ed. 591. In that case the supreme court propounded the law which, in my opinion, is applicable to the case before us, in the following language:

'We have thus taken a view of the authorities which treat of the doctrines of slander and libel, and have considered those authorities particularly with reference to the distinction they establish between ordinary instances of slander, written and unwritten, and those which have been styled 'privileged communications'; the peculiar character of which is said to exempt them from inferences which the law has created with respect to those cases that do not partake of that character. Our examination, extended as it may seem to have been, has been called for by the importance of a subject most intimately connected with the rights and happiness of individuals, as it is with the quiet and good order of society. The investigation has conducted us to the following conclusions, which we propound as the law applicable thereto: (1) That every publication, either by writing, printing, or pictures, which charges upon or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, or odious, or ridiculous, is prima facie a libel, and implies malice in the author and publisher towards the person concerning whom such publication is made. Proof of malice, therefore, in the cases just described, can never be required of the party complaining beyond the proof of the publication itself. Justification, excuse, or extenuation, if either can be shown, must proceed from the defendant. (2) That the description of cases recognized as privileged

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