Western Sugar Refining Co. v. Helvetia Swiss Fire Ins. Co.

• Decision Date: 08 June 1908
• Docket Number: 14,577.
• Citation: 163 F. 644
• Parties: WESTERN SUGAR REFINING CO. v. HELVETIA SWISS FIRE INS. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

163 F. 644

WESTERN SUGAR REFINING CO. v. HELVETIA SWISS FIRE INS. CO.

No. 14,577.

United States Circuit Court, N.D. California.

June 8, 1908

Morrison Cope & Brobeck, for plaintiff.

T. C Van Ness, for defendant.

VAN FLEET, District Judge (orally).

In this case the plaintiff seeks to apply the doctrine of undisclosed principal to a contract of insurance.

The action is based upon three certain policies of fire insurance, issued by the Rhine & Moselle Fire Insurance Company to the plaintiff, and copies of these policies are attached to the complaint and made a part thereof. Although these policies were issued by the Rhine & Moselle Fire Insurance Company, whose name alone appears as the insurer plaintiff sues the defendant, the Helvetia Swiss Fire Insurance Company, alleging that the latter was the undisclosed principal of the Rhine & Moselle Fire Insurance Company, which company, it is alleged, acted merely as the agent of this defendant in the transaction, and that therefore plaintiff is entitled to proceed directly against this defendant. The defendant has demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, and it is argued, in support of its demurrer, that a policy of fire insurance, while not technically a common-law specialty, is nevertheless a mercantile specialty, and that therefore the plaintiff cannot proceed against this defendant as the undisclosed principal of the Rhine & Moselle Fire Insurance Company, for the reason that the doctrine allowing a party to sue an undisclosed principal to a written instrument, executed in the name of the agent, does not apply in a case where the written instrument is a specialty.

It is no doubt, true that the rule of law permitting a party to sue the undisclosed principal to a written instrument does not apply where such a written instrument constitutes a specialty, but while it is true, as stated by Mr. Justice Shiras, in Assur. Co. v. Building Association, 183 U.S. 308, 325, 22 Sup.Ct. 133, 46 L.Ed. 213 (quoting from Parker, C.J., in Higginson v. Dall, 13 Mass. 96) that 'policies, though not under seal, have nevertheless ever been deemed instruments of a solemn nature and subject to most of the rules of evidence which govern in the case of specialties,' it is doubtful if such a contract is to be regarded as a specialty within the limitation of the rule under consideration. At least no case...