Watson v. Rhode Island Ins. Co.
| Decision Date | 29 May 1952 |
| Docket Number | No. 13754.,13754. |
| Citation | 196 F.2d 254 |
| Parties | WATSON v. RHODE ISLAND INS. CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William Stiglich, Galveston, Tex., for appellant.
T. E. Mosheim, Houston, Tex., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.
The judgment appealed from denied recovery upon an air craft hull policy. The ground of the denial was that, the action not having been "commenced within twelve months next after the happening of the loss," as provided in condition 81 of the policy, and it not being made to appear that the contract was a Texas contract, the Texas Statute, Art. 5545,2 avoiding contract limitation periods of less than two years, was inapplicable, and suit on the policy was barred. Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926; Aetna Life v. Dunkin, 266 U.S. 389, 45 S.Ct. 129, 69 L.Ed. 342.
Appearing here by counsel, other than the one who filed it and the one who submitted it below to the trial court, without a jury and on an agreed stipulation, appellant urges upon us that the contract was a Texas contract and the contract limitation period relied on below was invalidated by Art. 5545, 1925 Revised Civil Statutes of Texas, note 2 supra.
Conceding that the stipulation fails to adequately present the contention now made, indeed does not deal with it at all, appellant relies on the allegations in its complaint3 and the duly executed rider endorsements No. 24 and No. 35 attached to the policy. In addition it relies on documents not offered in evidence below, but tendered as Exhibits to its brief, which it claims would, if offered in evidence, have established that the contract was, as pleaded, a Texas contract.
Appellee, insisting that there is no basis in the record for holding that the contract sued on was a Texas contract within the meaning of the cited cases, vigorously defends the correctness of the judgment upon the ground put forward by the district judge in its support.
Opposing appellant's belated effort to bring before the court evidence not offered below, appellee moves that the reference to and the proposed exhibits be stricken from the brief, and, in addition, insists that the judgment is supported by breaches of other conditions of the policy than the one relied on by the district judge.
Pretermitting consideration of these other grounds and disposing of the appeal on the ground assigned below for the judgment, we think it plain: that the appellee's motion to strike exhibits now tendered for our consideration should be granted; that the appeal should be determined on the record made below; and that, on that record, the judgment was soundly based, and should be affirmed.
Affirmed.
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