Parker, Peebles & Knox v. National Fire Ins. Co.

• Decision Date: 09 May 1930
• Citation: 150 A. 313,111 Conn. 383
• Parties: PARKER, PEEBLES & KNOX v. NATIONAL FIRE INS. CO. H. MANN & CO., INC., v. NATIONAL FIRE INS. CO.
• Court: Connecticut Supreme Court

150 A. 313

111 Conn. 383

PARKER, PEEBLES & KNOX v. NATIONAL FIRE INS. CO.

H. MANN & CO., INC., v. NATIONAL FIRE INS. CO.^[*]

Supreme Court of Errors of Connecticut.

May 9, 1930

Appeal from Superior Court, Hartford County; Arthur F. Ells, L. P. Waldo Marvin, and Newell Jennings, Judges.

Scire facias actions by Parker, Peebles & Knox, and by H. Mann &amp Co., Incorporated, against the National Fire Insurance Company to recover from a garnishee on certain judgments theretofore obtained against Antoine El Saieh, brought to the superior court in Hartford county and tried to the court. Judgment for defendant in the first case and for plaintiff in the second case, and plaintiff in the first and defendant respectively, appeal.

No error on plaintiff's appeal, and error on defendant's appeal and case remanded with directions.

John L. Collins, of Hartford, and Philip W. Lowry, of New York City, for plaintiffs.

Wallace W. Brown, John H. Buck, and Charles Welles Gross, all of Hartford, for defendant.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

HAINES, J.

The Parker case is founded upon a judgment obtained by the plaintiff against El Saieh, which was affirmed upon appeal to this court. Parker, Peebles & Knox v. El Saieh, 107 Conn. 545, 141 A. 884, 59 A.L.R. 1424. The Mann case is founded upon a judgment against El Saieh rendered in the superior court November 19, 1926, and not appealed from. In both cases the present defendant was served with garnishee process alleging that it was the agent, trustee, and debtor of El Saieh. Both the plaintiffs are New York corporations having their principal places of business in the city of New York. The defendant is a Connecticut corporation, which was authorized by the laws of Haiti to do business in that jurisdiction. El Saieh was a resident of Haiti, where he conducted a store, and the defendant company had issued a policy of $20,000 on his merchandise, against loss by fire. One of the provisions of the policy was that it should not be valid until countersigned and delivered by the duly authorized agent of the defendant company in Haiti, and it was so countersigned and delivered there, and was in force at the time of the fire. At the time of the service of the foreign attachment in these cases, the loss which El Saieh had suffered by reason of the fire had not been adjusted, but the defendant conceded its obligation to him. At the time of the fire El Saieh had many creditors, including these plaintiffs, and afterward various actions and proceedings were brought against him in the courts of Haiti and in this State, and the funds in the hands of the defendant attached by garnishee process. To these actions, reference will be made, so far as necessary, in the further consideration of these appeals. In this situation, El Saieh was adjudicated a bankrupt by the courts of Haiti and an assignee in bankruptcy was duly appointed. The fire occurred November 2, 1925, and on January 7, 1926, El Saieh and the defendant, under a nonwaiver agreement, determined the loss under the policy to be $18,745.42. About February 10, 1926, the defendant received and accepted from El Saieh the proofs of loss and acknowledged its liability under the policy in the above sum. At no time was the liability of the defendant denied, and it was at all times ready, able, and willing to discharge its obligation to El Saieh provided it was not required to do so more than once. In July, 1926, El Saieh demanded payment from the defendant's agent in Haiti. With numerous legal actions in process and threatened, with negotiations under way for settlement, and with El Saieh's legal status involved, the defendant did not pay until the early part of October, 1927, at which time it sought to make payment in full by replacement in Haiti of the destroyed stock of goods, in line with its policy option which permitted replacement of goods or payment in cash. Its attempted replacement, however, did not conform to the policy requirements, and its action is found by the trial court to have been the equivalent of a payment in cash.

Parker, Peebles & Knox brought two actions in Haiti in March, 1926, one before and one after its Connecticut action, which latter was brought March 10, 1926, and resulted in a judgment against El Saieh for $8,325.45 and costs. Upon appeal by the assignee in bankruptcy, this judgment was affirmed as above indicated. Before the last-named action, two others had been brought in this State, one by Alfred Mullins in January, 1926, withdrawn March 20, 1928, and another by Mann & Co. on February 9, 1926, the latter resulting in the judgment above referred to, for $6,105 and costs, and thereafter the plaintiffs brought the present actions of scire facias.

One of the defenses interposed in each of these cases was that under the laws of the Republic of Haiti, the defendant was absolutely bound to discharge in Haiti the obligations incurred by reason of the policy, and in fulfilling such liability it chose its alternative to replace. " That the courts of the Republic of Haiti would not have recognized and will not recognize any judgments which might have been or may be rendered elsewhere than in said Republic of Haiti, holding that the benefits of said policy had accrued or should accrue to any other person than said El Saieh or his assignee in bankruptcy, and that if this court should render judgment against the defendant in this case, it would be subjecting the defendant to a double liability."

A demurrer to this defense was sustained in the Mann case, Ells, J., overruled in the Parker case, Marvin, J., and the cases were thereafter tried to the court, together, Jennings, J., resulting in a judgment against the plaintiff in the Parker case, and against the defendant in the Mann case. In each case, the losing party appeals.

Most of the corrections of the finding which are urged are not of a character to affect this particular question of double liability. The exceptions are those portions which have resulted from the admission of the so-called Exhibit 29, entitled " Admission of plaintiff with regard to the Third Defense of the defendant's answer." Under this defense it was necessary for the defendant to prove, among other things, that by the laws of Haiti the defendant was absolutely bound to discharge in Haiti its full obligation to El Saieh under its policy, and that Haiti would not and will not recognize any judgment by a Connecticut court affecting that position, so that by judgment here the defendant would be subjected to double liability. To establish this, the defendant offered in evidence a Statement dated February 16, 1929, apparently just prior to the time of its offer, and signed, " John L. Collins, Attorney for the Plaintiff." The opening words of this paper were, " The plaintiff admits the following facts to be true and correct," but the right was reserved to object to the admission of the Statement at the time of trial. It then continued as follows: " Under the laws of the Republic of Haiti, the defendant was absolutely bound to discharge to El Saieh or his assignee in bankruptcy the obligations incurred by reason of said policy. Under the laws of said Republic, if the defendant paid the plaintiff as an attaching creditor in Connecticut of said El Saieh whether such payment had or had not been made under Connecticut judicial compulsion, the defendant would have remained liable, under Haitian law, to El Saieh's assignee in bankruptcy to the full extent of said policy. The courts of the Republic of Haiti would not have recognized and will not recognize any judgment which might have been or may be rendered elsewhere than in said Republic holding that the benefits of said policy had accrued or should accrue to any other person than said El Saieh or his assignee in bankruptcy. Should this court render judgment against the defendant in this case, and should the defendant satisfy it, the defendant would be paying more than the loss sustained under said policy to the extent of the judgment rendered. John L. Collins, Attorney for the Plaintiff."

Various objections to the admission of this paper were urged by the plaintiff, the general ground being that no facts should be admitted or considered by the court in support of this defense of double liability. Obviously, if this was a valid defense, relevant evidence was admissible in support of it. The import of these objections therefore was that the defense itself was invalid and insufficient. All questions of that character, however, had been disposed of adversely to the plaintiff in the Parker case, by the ruling on demurrer, and the arguments against the admission of this paper were nothing more nor less than arguments against the sufficiency of the defense itself. The demurrer in the Parker case having been overruled, Exhibit 29, when offered, was relevant and admissible evidence in support of the allegations of the defense of double liability, and the ruling was correct.

The overruling of the demurrer is assigned as error. The demurrer was on three grounds: (1) That it was not alleged that the replacement of the property by the defendant was under compulsion of Haitian judicial process in an action in Haiti, and the replacement was therefore a voluntary payment; (2) that the Connecticut courts have the power to enforce the plaintiff's judgments against El Saieh by judgments against this garnishee, and need not inquire whether such action will be recognized by the courts of Haiti; and (3) that it was not alleged that the defendant had been sued in Haiti by El Saieh or his assignee, or that Haiti would not recognize a defense of pro tanto discharge by payments of these judgments in Connecticut.

The vital feature of the defense...