*1 have been contract would able where ma- not been for into had it
entered person.” This of a third licious conduct principle can of torts have
of the law As
application to the defendants. already they above, con- were bound prize to entrant to award the estimate. correct
who submitted the allege nothing of substance adds they employees conspired their own obligation. perform their contract not to Furthermore, stated Nieberg
Schuykill Corp. B & C Fuel 304, 306,
Realty Corp., N.Y. 165 N.E. judgment that “A in one one, not
is only in a later conclusive [a] [bar] litigated matters might therein, but also litigated, have been so two
causes of action such a measure have judgment identity that a different rights destroy impair second would established the first” is here interests
applicable. All the material to the facts
present tortious interference Judgment the state court claim. af-
firmed. WALLER, Appellant,
Charlie Ervin PROFESSIONAL INSURANCE CORPO- RATION, and J. Larson, Appellees. Edwin Austin, Edward T. Jr. and &Moore No. 18896. Jacksonville, Fla.j Austin, United States Court of Mahorner, Atty. Gen., James Asst. Fifth Circuit. Boggs, Jacksonville, Fla., Dean Richard Dec. 1961. Ervin, Atty. Gen., Kelly, W. Robert J. Atty. Gen., Boggs, Asst. Blalock & Hol- Jacksonville, Fla.,
brook,
appellee,
Corp.
Ins.
TUTTLE,
Judge,
Chief
Before
WISDOM,
Judges.
JONES
Circuit
Judge.
WISDOM, Circuit
plaintiff,
Waller, ap-
Ervin
Charlie
peals
the district court’s
dismissal
*2
policy
Insur-
vision
conflicts
Professional
his
per
In-
four
cent
fixed
Corporation
interest rate
and two
ance
“Policy
policy provides:
The
surance Commission
ac-
claim
Larson,
Loans—-When values
cording
available
for failure to state a
and
presenting
controversy suf-
to the Table Non-Forfeiture
an
thereof,
court
Loan
district
and
extension
provide
Values or
federal
ficient to
force,
policy
‘Profes-
and while this
§
under
U.S.C.A.
‘Policyowner’,
sional’ will lend to the
We reverse.
assignment
policy
proper
on
of this
purchased
Waller
December
security
‘Professional’ and
on
sole
Corpora-
Insurance
from Professional
compound
hereof with
interest
5%of
single premium
insurance
life
a
per annum,
a
sum not
excess of
$50,000. As
policy
in the face
*.”
the loan value column
plan, he borrowed
part
of the
The conflict went unnoticed for twelve
finance his
$22,950
from the
years. During
years
all these
Waller
$22,971.18.
payment
premium of
of the
regular
payments
interest
made
.at
“Policy Loan Note” to
a
He executed
rate, Larson,
In-
State Treasurer and
4%
debt, promis-
Professional
cover this
Commissioner,
surance
and
pay
interest “at
Examiner,
Senior Insurance
announced
annually quarterly
annum, payable
per
the trouble November
a let-
pol-
note
tied
The
in advance.”
ter to Professional
Office
the Treasurer’s
given
icy.
for a
It
that was
recites
pointed to a Florida statute
635.-
[F.S. §
Policy
policy
LOO-8982
on
Number
loan
prohibiting
now section 626.0610]
assigned
policy
to Pro-
was
and
“discrimination between insurants of the
security
payment of
as
for
fessional
* *
* * * premi-
same class
paid,
If
note and interest.
* *
any
ums or rates
or in
other of the
deducted
are to be
and interest
note
terms and conditions of the contracts.”
maturity
proceeds payable
of the
It called
Professional to correct the
provides
“if
policy.
also that
policy
interest differential in the
loan
principal
unpaid
inter-
and
when the
and
agreements
policies
equal
providing
under
the then cash
for
note shall
est
* *
*
policy
rate,
value of the
a
and
surrender
*
to collect the back
* *
allegedly
termi-
shall
said
due.
promptly
demanding
void.”
become
wrote
nate and
Waller
back
835.63
interest.1
then
Waller
agree-
parties,
Unknown to the
paid
has
interest at the
under
pro-
built-in trouble:
contained
ment
plainly
such contract other
than as
ex-
reads as follows:
1. The letter
pressed
(Em-
issued thereon.’
Policy
Agreements
Loan
Un-
“Re: 4%
added.)
phasis
Contract.
der 5%
provisions
policies
“One of
of these
Mr. Maddox:
“Dear
provides
loan
values on the sole se-
clarify
subject
above
“In order
curity
policy,
compound
inter-
please
to Florida
Stat-
Insurance
refer
rate of
est
annum. The
635.02, which state:
utes
manage-
loans were
made
‘old’
“
doing
in this
life insurer
business
‘No
management
appar-
and ‘new’
ment
was
any
permit
make or
distinction
shall
ently unaware of the difference between
insurants
discrimination
provisions
loan
expectation
equal
or
life
class
same
notes.
payment of
amount or
as to the
charged
policies
no evidence
“There is
there had
or
or
rates
any
approval
Actuary
insurance,
been
or in the dividends
endowment
Department,
payable thereon,
the Florida
Examiner
or
other benefits
or
Nor
any
time.
there has
at
approval
been
the terms and conditions
other of
any
the Florida
Insurance De-
it malees. Nor
the contracts
shall
agent
thereof,
previous
Zone,
partment,
make
three
insurer
agreement
insurance or
contract of
protect
pany’s
protest,
payments
investment
claim for
his
back interest
coverage.
allegedly
paid
surance
He
due.
depends
back
$50,000
interest.
surance
*3
the
this suit Waller
the Court
asks
may
be,
plaintiff alleges,
well
as the
that
(1)
variety
a wide
the
that
of relief:
the Court will determine
that the note
adjudge
Court
not entitled
together
the
were invalid
to
interest,
of
the back
initially
illegality
because of
or mistake
plaintiff paid
protest
amounts
reason;
or for some other
com
Waller’s
refunded;
(2)
be re-
that Professional
plaint effectively puts
questions in
these
making any
strained from
may
issue. Or
Court
the
find that the
plaintiff
the
based
an interest rate
binding
rate stated in the note is
; (3)
other
Flor-
than
that the two
and the contract
However the
valid.
ida officials
from interfer-
be restrained
may decide,
Court
it cannot limit
in
its
with the
insurance con- quiry to Professional’s
back in
claim to
note;
(4)
tract
that the Court de-
;
terest
must rule
according
clare
as the
due
to
rate
underlying agreements to which
(5)
parties;
in the
the intention of the
applies.
terest
relief
alternative, should the Court determine
sought
adjudication
requires an
of
le
as the
declare
that the Court
5%
the entire contract
gal
effect
and the
illegal
inception
in its
policy loan, their values determine the
plaintiff
refund to
and in-
controversy.
Ins. Co.
Home
amounting
terest,
$15,954.33
as of the
Trotter, Cir., 1942, 130
of New York v.
8
filing
complaint;
(6)
of
in the
date
800;
F.2d
C.
see E. Carnes &
Em
Co. v.
alternative,
further
Court re- ployers’ Liability
Corporation,
Assur.
scind
for failure
consid-
London, England, Cir., 1939,
Limited of
5
eration and
mistake and refund
the
argue this Court should abstain adjudicating dispute in order this Elijah SUMMERS,Appellant, courts to decide allow the Florida questions of involved in the state law MYKEN. SKIBS A/S preliminary At this state Nos. 13609. proceedings, however, cannot we see require district court this case will United Court of States questions more difficult to determine Third Circuit. regularly handled law than are state Argued Oct. federal courts. Decided Nov. dismissing case for want The order jurisdictional
Reversed. Judge, (dissenting).
JONES, Circuit court concluded that The district
amount involved in cause was 835.63, the difference My review collected. 5% of record, briefs, opinion majority has convinced me of the the district court’s deter- correctness
mination.
was absent. demands officials cannot re-
quire cancel insurance it to appellant if such would be cancellation
of contrary finding judgment, A to law. proper, in an action be- Barish, Philadelphia, Pa. I. Marvin appellant and the insurance tween the company Freedman, Freedman, (Abraham E. give protection. full him would Landy Pa., Lorry, Philadelphia, & nothing being being so, and This brief), any attempted coercion to indicate Kildare, Philadelphia, follows, Pa. I Harrison appellant by Henderson, Philadelphia, Pa., (Rawle & think, of action cause is stated Mount, Philadelphia, though Pa., F. Even Thomas officials. the state brief), appellee. present, is a such