Sumner v. Piza

• Decision Date: 09 January 1899
• Citation: 91 F. 677
• Parties: SUMNER et al. v. PIZA.
• Court: U.S. District Court — Southern District of New York

91 F. 677

SUMNER et al. v. PIZA.

United States District Court, S.D. New York.

January 9, 1899

Butler Notman, Joline & Mynderse and F. M. Brown, for libelants.

Martin & Well, for respondent.

BROWN District Judge.

The defendant Piza is one of 30 persons forming the insurance association called the South & North American Lloyd's. The association issued a marine policy dated May 12, 1895 signed in behalf of the 30 associates by Whipple & Co. attorneys, whereby they insured the schooner Walter Sumner valued at $6,000, for the sum of $1,250, for one year from May 25, 1895, to May 25, 1896. The libel alleges a loss on February 1, 1896, within the policy; that on April 24, 1897, the loss was duly adjusted at $1,309.34, after deducting all claims for general average, of which loss $272.78 was chargeable to and formed a loss under said policy. The answer of the defendant Piza admits the making of the policy, and expressly states that it does not deny the other allegations in the libel as respects the loss and adjustment. It further avers that before the commencement of the action the respondent tendered to the libelants the sum of $9.93, with interest from April 28, 1897, the date of the adjustment, 'the same being 1/30 of the amount, to wit, $272.78, which according to the libel the libelants became entitled to receiver from each subscriber, and avers that the said sum of $9.93 is all that the libelants are entitled to receiver from the respondent under the provisions of the policy. The libel alleges, on the other hand, that each subscriber bound himself for 1/30 of $1,250, i.e. $41.67, and the libelants therefore claim any and each of the associates $41.67 (the associates being severally and not jointly liable) until the loss payable under this policy is made good.

Under the pleadings and the stipulation between the parties, I find that there is no dispute as to the adjustment of the sum of $272.78 as the amount chargeable against this policy for the loss. The only question is whether the libelants under the provisions of the policy are in law entitled to recover from the respondent under the provisions of the policy $9.93 or $41.67, more than either amount being still unpaid.

The provisions of this policy are almost identical with those of the policy in the case of McAllister v. Hoadley, 76 F. 1000. Both contain the same clause, that the members of the association 'bind themselves severally and not...