Merchants' Ins. Co. of Newark, N.J., v. Buckner

• Citation: 98 F. 222
• Decision Date: 13 November 1899
• Docket Number: 703.
• Parties: MERCHANTS' INS. CO. OF NEWARK, N.J., v. BUCKNER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

98 F. 222

MERCHANTS' INS. CO. OF NEWARK, N.J., v. BUCKNER et al.

No. 703.

United States Court of Appeals, Sixth Circuit.

November 13, 1899

George S. Steere, for plaintiff in error.

Reuben A. Miller and George W. Jolly (John Feland, of counsel), for defendants in error.

Before TAFT, LURTON, and DAY, Circuit Judges.

DAY Circuit Judge.

This cause was begun in the circuit court of the United States for the district of Kentucky by the plaintiffs, Buckner & Co., to recover damages from the defendant insurance company for alleged libel. The company, organized under the laws of the state of New Jersey, was engaged in carrying on the business of fire insurance in the state of Kentucky. Its manager was one R. H. Garrigue, whose residence was in Chicago. In 1895 Buckner & Co., it is alleged, were regularly appointed agents for the company, with full authority to solicit and write fire insurance for it in Hopkinsville, Ky., and vicinity with the assurance and promise of defendant, through its agent, that they were to be sole agents of said company in said locality; that defendant would not write policies of insurance in that territory, except through them; and that plaintiffs were to receive commissions on all policies so written. The defendant denied that this was the contract, and claimed that its agent who made the contract notified Buckner & Co. that he had no authority to grant them the exclusive privilege of writing business at Hopkinsville, but that the company protected its agents in the matter of overhead writing. The company claimed that Garrigue, the manager having discovered that a policy covering property at Hopkinsville had been written in New York, notified Buckner &amp Co. thereof, and thereupon canceled the same and returned the premium to the insured. Buckner & Co. claimed that they were entitled to a commission on this policy, the same as if written by themselves. This claim was disputed. Buckner & Co. retained $22.50 of money of the company which was in their hands. There was at this time a local board composed of the respective agents of the companies doing business in the town. This board regulated the rates of insurance in their territory. It was subordinate to the Kentucky & Tennessee Association, which association regulated the rates of the board. The local board excluded plaintiff in error because of its alleged misconduct in the matter of Buckner & Co., and imposed a fine upon Mercer & Mercer, who had been appointed local agents of the company in the place of Buckner & Co. After considerable correspondence, a letter was written by the company in response to one from the secretary of the local board. This letter is the basis of the action, and is as follows:

'Chicago, Ill., June 6, 1896.

'Mr. J. S. Moore, Secretary, Hopkinsville, Ky.-- Dear Sir: We have asked our agents, Messrs. Mercer & Mercer, to return to you the inclosed voucher and this letter. In order that there may be no mistake as to the position of the Merchants' Insurance Company of Newark, beg to advise that this company will never join the Hopkinsville board, as now constituted, until full reparation has been made for the outrages committed against us by the official acts of that body. The notice of Secretary Ashbrook, of the Kentucky and Tennessee Association, that the 'disabilities imposed' against this company by your board had been removed, does not suffice. We have made our demand, and will insist upon full compliance before associating ourselves with the board again; and we desire to give notice to the Hopkinsville board that we will hold any or all of them to the full extent of the Kentucky laws, for whose protection and under which we transact our business in your state, should any attempt be made to molest our property. We do not waive any claim for damages we may have for previous actions by the board or its individual members in endeavoring to force this company from your city, neither do we make any threats as to our future course. We feel that the firm of Buckner & Co. are withholding money they collected, belonging to this company, and that the criminal laws provide for their action. We are advised that the board collected a fine from Mercer & Mercer for taking the agency of this company. We know that the board, while in session, refused to meet our representative. We know that fines were imposed against this company without notice, trial, or hearing. We are advised that such unpaid fines have been rescinded as to the company. We are advised that the collected fine against our agents has not been remitted. We know that our agency supplies were sent, by the official action of the board, to this office, without our consent, and that we were put to the expense of paying the express charges both ways on the package, as well as the additional expense of sending a representative to Hopkinsville to replace the package in the office that your board forcibly caused to surrender them. We have demanded for these outrages a full and complete apology; a remission and repayment of all fines collected or imposed for any act of this company or its representatives; the payment by Buckner & Co. of $22.50, the amount they robbed from company funds in their possession, on a false claim for commissions on business that they did not transact; and an unanimous invitation to join the board. Until the foregoing demands have been fully complied with, we positively decline to contribute one cent, or allow the name of the company on its roll of membership.

Yours, truly, R. H. Garrigue, Manager.'

Upon the trial, verdict and judgment were rendered in favor of Buckner & Co.

1. A preliminary question is made by the defendant in error as to the allowance of the bill of exceptions. It appears that a judgment of $3,500 in favor of Buckner & Co. was rendered on January 28, 1898. On the same day, plaintiff in error filed a motion for a new trial, and in reference thereto the following order was made by the court:

'This day came again the parties, and defendant filed a motion for a new trial herein; and it is ordered that execution do not issue upon the judgment in this case until the further order of this court, and, on motion of defendant, it is allowed sixty days in which to tender and file a bill of exceptions herein.'

The motion for a new trial was not disposed of until the following June term of the court. On the 9th day of June the court, having considered the motion of the defendant for a new trial, found the verdict of the jury in favor of the plaintiffs to be excessive, and ordered that a new trial be granted unless the plaintiffs, by a proper writing, remit $1,500 thereof. On the same day defendant was allowed 60 days in which to file a bill of exceptions, to which order plaintiffs excepted. It is urged that, in the absence of any rule to the contrary, a bill of exceptions must be filed during the term at which the trial was had. The defendant, having failed to file the bill within the time limited, is not, it is claimed, within the rule which permits the filing thereof where the motion for a new trial has been continued to a subsequent term. The general rule as to the allowance of bills of exceptions is thus stated by Mr. Justice Gray (Bank v. Eldred, 143 U.S. 298, 12 Sup.Ct. 452, 36 L.Ed. 162):

'By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circumstances, they must be allowed by the judge and filed with the clerk during the same term. After the term has expired, without the court's control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or to amend a bill of exceptions already allowed and filed, is at an end. U.S. v. Breitling, 20 How. 252, 15 L.Ed. 900; Muller v. Ehlers, 91 U.S. 249, 23 L.Ed. 319; Jones v. Machine Co., 131 U.S.Append. 150, 24 L.Ed. 925; Hunnicutt v. Petyon, 102 U.S. 333, 26 L.Ed. 113; Davis v. Patrick, 122 U.S. 138, 7 Sup.Ct. 1102, 30 L.Ed. 1090; Chateaugay Ore & Iron Co., Petitioner, 128 U.S. 544, 9 Sup.Ct. 150, 32 L.Ed. 508.' In cases where a motion for a new trial is regularly filed, and not acted upon, there seems to be no necessity for a presentation of the bill, as the granting of the motion will render it entirely unnecessary so to do. It has been the practice in this circuit to permit the bill to be filed after the motion has been overruled, although such action be had at a subsequent term of court, and we see no reason to depart from this practice in this case. When the motion for a new trial was filed, it was ordered that defendant be granted 'sixty days in which to tender and file a bill of exceptions,' but the purpose of the court to reserve control of the judgment until the motion for a new trial should be acted upon is shown in the order withholding execution until further order of the court. At the June term, when the court passed upon the motion, a further time of 60 days was granted to the plaintiff in error within which to file a bill of exceptions. The bill was presented within this time, and we are of the opinion that it was in time, and properly allowed.

2. Did the court err in overruling the demurrer to the amended petition? This pleading sets forth, in substance, that during the year 1895 the plaintiffs were co-partners engaged in carrying on business as agents for various fire...