ROSE et al. v. UNITED AMERICAN INS. CO. OF PENNSYLVANIA et al.

ROSE et al. v. UNITED AMERICAN INS. CO. OF PENNSYLVANIA et al. Circuit Court of Appeals, Fifth Circuit. May 10, 1929. No. 5300. Paul W. Maloney, of New Orleans, La., for appellants. Nicholas Callan, of New Orleans, La. (Monroe & Lemann and Nicholas Callan, all of New Orleans, La., on the brief), for ap-pellees. Before BRYAN and FOSTER, Circuit Judges, and DAWKINS, District Judge. [MAJORITY — DAWKINS, District Judge.] DAWKINS, District Judge. Plaintiff appeals from a judgment sustaining an exception of no cause of action and dismissing her suit. Her demand was made on an. insurance policy, which- upon its face was in favor of the Freed Realty Company, Inc., dated October 29, 1923. The petition admits there was no assignment indorsed upon the policy by the realty company nor was there any formal transfer made by the defendant. However, she makes the following allegations: 3. “That she acquired the ownership of the said property on December 22, 1923, from the-Freed Realty Company and, while there was no formal assignment of ownership on the reverse of the said policy, it is a fact that the said company took cognizance thereof and consented , thereto, through its duly authorized agent in this city, A. C. Vreeland, Inc., having full, power so to do, as will appear from the bill for the premiums thereon, dated Jan. 25th, 1924, which is made a part hereof with the said policy, which is also made a part hereof, the said premiums being paid by her to the said company.” 4. “That while the said policy was in full force and' effect, a fire occurred in the said property and it was destroyed on March 8, 1925, and the said United American Insurance Company of Pennsylvania, became liable for the full amount of the said policy in favor of petitioners herein.” 5. “That the said defendant company did not furnish to petitioners proofs of loss, whatever, so that it was not incumbent raider the law upon petitioners to make any such proof and that the said defendant company has, without any' reason, refused to pay tbe said loss to petitioners in the full amount thereof, and undpr the law, the said company had become liable to- petitioners in tbe further sum of 12% as a liquidated penalty, on the said $12,000, together with the further sum of reasonable attorneys fees in tbe amount of $1,200, tbe aggregate sums of which should be paid by tbe defendant to petitioners and for which judgment should be rendered, herein, as prayed for.” 9. “Petitioners further represent that the Freed Realty Company, the owner of said property at the time of the issuance of the said policy, has, on the contrary, no interest in the recovery herein except as the assignor of the said policy or its rights thereunder, which it made at the time of its sale of the property and which was done with the consent and assent of the said defendant insurance, herein, the United American Insurance Company of Pennsylvania, as has been heretofore set out, which has continuously treated the said Mrs. Marie Rose Sage as the owner of the said policy and the person entitled to any loss, thereunder.” The bill attacked to and made a part of tbe record is as follows: “New Orleans, La. Jan. 25, 1924. “Mrs. Marie R. Rose. “A. C. Vreeland, Inc. “1003 Maison-Blanche Bldg. “Phone Main 2519. “Property located #4117-4119 Perrier St. “Kindly mail check. “Make all checks payable to A. C. Vreeland, Inc.” From the above it appears that the bill covering charges for the insurance was rendered on January 25, 1924, after, as petitioner alleges, she had acquired the property on December 22, 1923, by the same agency which signed the original policy on behalf of the defendant company, and was paid by plaintiff. This was more than a year before the fire, and presumably the agent remitted to the company its share of the premium, which according to the petition it still holds. Petitioner during this long period was no doubt led to believe that her property was protected, for she had paid for that protection the premium demanded by the company to the agent who was authorized to receive it and empowered to issue the formal papers necessary to effect an assignment. In view of these circumstances, we do not think it can be said as a matter of law that the petition and exhibits, the allegations and recitals of which of course are taken as true, do not state a cause of action. See Gitz Sash Factory v. Union Ins. Soc. of Canton, Ltd., 160 La. 381, 107 So. 232, and authorities cited therein. We think the case should be heard upon its merits. For the reasons assigned the judgment appealed from is reversed, and the ease remanded to be proceeded with according to law.