City Nat. Bank of Fairmont v. Fidelity Mut. Life Ins. Co

206 F.2d 531, 1953 U.S. App. LEXIS 2783

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 8, 1953
• Docket: 6599_1
• Status: Published

Opinions

DOBIE, Circuit Judge.

The City National Bank of Fairmont, (hereinafter called the Bank), instituted, in the United States District Court for the Northern District of West Virginia, a civil action, sounding in tort, against The Fidelity Mutual Life Insurance Company (hereinafter called Fidelity), to recover damages for the alleged fraud, deceit or misrepresentation of Fidelity. The District Judge found (1) that the Bank’s cause of action was barred by the statute of limitations; (2) that the Bank had established no actionable claim of fraud, deceit or misrepresentation against Fidelity. The Bank has appealed to us.

There is little or no dispute about the facts in this case, which are somewhat complicated. Fidelity, through its general agent, Hupp, at Fairmont, West Virginia, had issued a policy of insurance upon the life of Donald P. Ave Lallemant for $48,000, payable at his death to his wife, Marjorie H. Ave Lallemant, if living, otherwise to his son, John D. Ave Lallemant. Prior to October 25, 1948, Lallemant and his wife came to the conclusion that their marital difficulties were irreconcilable. They accordingly entered into a separation agreement.

About the same time, Lallemant executed and delivered to his wife an assignment of this policy on a form furnished by Fidelity. He did not deliver the policy to his wife but stated that it had been inadvertently left in his safe deposit box. His wife was told that the policy would be delivered to her within ten days. It was also stipulated in writing that the policy would be delivered to the wife’s attorney within that time.

On October 27, 1948, counsel for Mrs. Lallemant wrote a letter to Fidelity, giving notice of the separation agreement and this assignment, and stating that, within a few days, the policy and collateral assignment would be sent to Fidelity by registered mail. This communication was promptly acknowledged by Fidelity in a letter signed by Vincent Keesey, its assistant counsel, in which it was suggested that the assignment be signed by both the insured and the beneficiaries under the policy, or that a change of beneficiary form be executed, in which event the assignment need be executed only by the insured.

Upon receipt of this letter from Fidelity, Lewis; one of counsel for Mrs. Lallemant, talked by telephone to Keesey and discussed with him the import of the letter, agreeing in some instances and disagreeing in others, as to the terms thereof, promising, however, to comply if possible and as soon thereafter as conditions could be met. Apparently nothing further was done until January 17, 1949, when Keesey again wrote to counsel for Mrs. Lallemant. In this letter, Keesey stated:

“We have had no further word from you about the matter. I presume you are aware of the policy provisions that the Company will not be charged with notice of any assignment until the assignment in duplicate has been filed at this office for record. I would suggest that you urge the parties to request change of beneficiary as suggested, and see that both copies of the assignment are sent here for record. After that is done, we will return the duplicate copy of the assignment, properly endorsed, to show it has been' recorded.”

Upon receiving this letter, Lewis again telephoned Keesey, telling him that he was trying to comply with defendant’s demands, though he felt that all the formalities suggested by Keesey were not necessary since Ihe policy had been assigned and in his opinion this was all that would be legally required. On February 16, 1949, Lewis again wrote to Keesey that every effort was being made to comply with Keesey’s requests and that he hoped to have the matter completed soon.

• Counsel for Mrs. Lallemant were never able to secure the original policy or to get a duplicate of the assignment and at no time received any cooperation from Lallemant or his attorney. A copy of the separation agreement was not given to Fidelity. Lewis had told Keesey that when Lewis received the policy, he would send it and the assignment papers together to Fidelity.

On March 3, 1949, Lallemant went to the office of Hupp for assistance and advice in securing a loan. Hupp discussed at length with Lallemant the correspondence between Hupp and Keesey concerning the policy and the alleged assignment to Mrs. Lallemant. Lallemant hold Hupp that the purported agreement between his wife and himself had not been finally determined and that the negotiations had been broken off. Hupp then inquired of Edwin C. Griswold, Vice President of the plaintiff, with whom he was personally acquainted, whether Lallemant could obtain a loan of $5,000' on the $48,000 insurance policy which at that time had a cash surrender value of more than $5,000, and made an appointment with the bank officials for the following day. IIupp then telephoned Kéesey in Philadelphia to inquire “whether there was any assignment on file, or record, against this policy.” Keesey told Hupp that he didn’t believe there was an assignment on record but that he would examine the file and would send a telegram. That same afternoon, Hupp received from Keesey this telegram: “No assignment of policy 657697 Ave Lallemant on file here.”

On March 4, 1949, IIupp took Lallemant to the Bank and introduced him to Gris-wold, Vice President, and to Carl Springer, cashier of the Bank. The original insurance policy of $48,000 was produced by Lallemant. Griswold then asked Lallemant if the policy was free and clear of incumbrances; Lallemant answered in the affirmative. Griswold then turned to Hupp and asked Hupp what he knew about it and as to the existence of any assignment against the policy. To this Hupp replied that he had a telegram from the home office of Fidelity to the effect that it was clear of any assignment on record. Hupp, though fully acquainted with the alleged previous assignment of the policy to Mrs. Lallemant, through correspondence with Keesey and discussions with Lallemant, failed utterly to disclose to the bank officials anything about this previous assignment of the policy to Mrs. Lallemant.

Thereupon the Bank lent Lallemant the sum of $5,000 on his note, dated March 4, 1949, payable within 60 days and accepted as collateral therefor an assignment of the insurance policy. This assignment, properly executed, was transmitted to Fidelity by IIupp, and was received and filed in due course. At such time there was no formal record of a prior assignment of the policy at the home office of Fidelity.

On March 8, 1949, Keesey, on behalf of Fidelity, wrote to counsel for Mrs. Lallemant this letter:

“You will remember we have had some correspondence with you respecting a proposed assignment of the above numbered policy. However, to date, we have not received any assignment of the policy from you. I can advise you we have just received through our Fairmont, West Virginia, office an assignment of this policy dated March 4, 1949, executed by the insured naming City National Bank of Fairmont, West Virginia, assignee of the policy.”

On March 10, 1949, counsel for Mrs. Lallemant sent to Fidelity the assignment of the policy to her. This assignment bore the date of October 26, 1948.

Lallemant defaulted in the payment of his note to the Bank, which, on May 3, 1949, wrote to Fidelity requesting it to send to the Bank, under Lallemant’s assignment of the policy to the Bank, the amount of the note. Thereupon, on May 9, 1949, Fidelity advised the Bank of the adverse claim of Mrs. Lallemant and notified the Bank, under these circumstances, Fidelity was unwilling to pay either claimant until their equities were established.

On June 24, 1949, the Bank filed, in the Circuit Court of Marion County, West Virginia, a notice of motion for judgment against Fidelity and Lallemant for the sum of $5,000, the amount of the note, together with interest and costs. Whereupon, on June 29, 1949, in the District Court of the United States, for the Northern District of West Virginia, at Fairmont, Fidelity filed an action of Interpleader, pursuant to the provisions of Section 1335, Title 28, United States Code, naming as defendants the Bank and Donald P. and Marjorie H. Ave’ Lallemant.

That same day, District Judge Baker enjoined the Bank “from instituting or prosecuting any other suit or proceeding against the plaintiff (Fidelity) in any State Court or in any other Federal Court on account of the Policy of Insurance issued by the plaintiff.”

The Bank filed its answer in the inter-pleader action July 22, 1949; Lallemant filed his answer August 1, 1949; Mrs. Lallemant filed her answer August 23, 1949, and filed an amended answer March 9, 1950, in her remarried name of Marjorie H. O’Flynn.

At the time of the filing of the Inter-pleader action, Fidelity gave bond with approved surety which was accepted. On March 6, 1949, Fidelity paid into court $5,822.83, the cash surrender value of the policy. On April 6, 1950, Fidelity was dismissed as a party to the Interpleader action, leaving the priority of the respective claims of the Bank and Mrs. Lallemant to be determined by the court.

The Interpleader action was tried April 6, 1950. On December 30, 1950, District Judge Watkins filed his opinion, in which he decided against the Bank, and in favor of the wife. Fidelity Mutual Life Insurance Co. v. City National Bank of Fairmont, D.C., 95 F.Supp. 276. No appeal from this judgment was taken by the Bank.

The order of the District Court entered on January 9, .1951, further provided that the injunction theretofore awarded at the time of the institution of the Interpleader action be made perpetual insofar and to the extent only that said injunction applied to prosecuting any action against Fidelity, arising contractually under Insurance Policy No. 657697, or to recover said fund of $5,822.83, or any part thereof, deposited in the registry of the Court, arising under said insurance policy, but said injunction was not further or otherwise perpetuated.

On September 10, 1951, motions were made in the Circuit Court of Marion County, West Virginia, as a result of which judgment in favor of the Bank was taken against Lallemant to the amount of the loan, including interest and costs. 'Execution thereupon was returned unsatisfied. The Bank instituted the instant civil action September 21, 1951.

One of the terms of the policy of insurance reads as follows:

“Assignment. — No Assignment shall be binding upon the Company until the original or a duplicate thereof is filed at its Head Office. The Company assumes no obligation as to the effect, sufficiency, or validity of any assignment.”

Two questions are before us on this appeal: (1) did the Bank state and prove a valid claim, or cause of action against Fidelity; and (2) was this claim barred by the Statute of Limitations. There i-s some suggestion of a plea of res adjudicata against the Bank by virtue of the Inter-pleader action. We deem this last contention so obviously lacking in merit as to require no discussion by us. We discuss only the plea of the statute of limitations.

The applicable statutes of limitations of the State of West Virginia, and the interpretations placed upon these statutes by the highest court of the State of West Virginia are not entirely clear.

It seems that prior to 1949, the limitation - period in West Virginia for actions for misrepresentation, fraud or deceit was 5 years, Mylius v. Arnold, 99 W.Va. 341, 128 S.E. 740; Horton v. Tyree, 102 W.Va. 475, 135 S.E. 597. The applicable statute was amended in 1949 by an act of the Legislature, effective June 7, 1949, which reduced the period to 2 years. Code of West Virginia, Ch. 55, Art. 2, § 12.

The limitation period, of course, begins to run at the time of the accrual of the cause of action. We are thus faced with the question: when did the instant cause of action accrue.

There is a line of cases holding that the cause of action accrues at the time of the commission of the wrong — here the alleged misrepresentations of Fidelity’s agents. Merchants’ National Bank v. Spates, 41 W.Va. 27, 23 S.E. 681; Boyd v. Beebe, 64 W.Va. 216, 61 S.E. 304, 17 L.R.A.,N.S., 660; Harper v. Harper, 4 Cir., 252 F. 39; Pickett v. Aglinsky, 110 F.2d 628. If this rule be applied, clearly Fidelity’s cause of action is barred.

There is in West Virginia, however, a statute which is listed under the general heading of “Actions on Bonds of Personal Representatives and Fiduciaries Generally”, Chapter 55-2-7(5399), the pertinent part of which reads:

“The right to recover money paid under fraud or mistake shall be deemed to accrue, both at law and in equity, at the' time such fraud or mistake is discovered, or by the exercise of due diligence ought to have been discovered.”

There is some question as to the applicability of this statute to the instant case. But, even if this statute be applicable, it does not help the Bank. For we think that, more than two years before the instant action was instituted, the Bank, “by the exercise of due diligence,” ought to have discovered the alleged “fraud or mistake.”

Fidelity’s letter to the Bank, May 9, 1949, advising the Bank of Mrs. Lallemant’s adverse claim and of Fidelity’s unwillingness to pay the Bank, certainly put the Bank on notice and should have prompted inquiry by the Bank. The Bank was fully informed upon the institution, June 29, 1949, of the Interpleader action by Fidelity. And, to clinch this matter, the answer of Mrs. Lallemant in the Interpleader action, filed August 23, 1949, fully informed the Bank of the details of her claim.

Yet, in the face of all this, the Bank did nothing. We quote from the very naive testimony of Carl Springer, cashier of the Bank:

“Q. So that you acting as the head of the bank did nothing whatsoever from the time you first received the May 9th, 1949 letter from the Company up until this Court met here in April, 1950, to find out what Mrs. Lailemarit’s claim was all about, that is correct?

A. We were not interested in finding out what it was about because we thought our assignment was good, see.

“Q. My question is you made no effort whatsoever to find out what her claim was about, isn’t that correct? A.

I did not.”

But we are solemnly told in the Bank’s brief:

“It was not until the hearing in the interpleader action on April 6, 1950, that appellant first learned that Hupp knew of Mrs. Lallemant’s adverse claim, but failed to disclose this to the appellant on March 4, 1949.”

If this be true, the Bank’s failure to learn sooner that Hupp knew of Mrs. Lallemant’s adverse claim was due to the Bank’s clear negligence and unjustifiable inaction.

We must, therefore, hold, as did the District Judge, that the Bank’s cause of action accrued more than two years before the instant action by the Bank against Fidelity was instituted.

This brings us to the contention, strongly stressed by the Bank, that the injunction granted by Judge Baker in the Interpleader suit tolled the running of the statute of limitations. We agree with the District Judge that this contention is without merit.

On this point, the District Judge stated in his opinion [110 F.Supp. 517] :

“Plaintiff, in its brief admits that the subject matter of this action is not the same as the subject matter embraced in the Interpleader action, this sounding in tort, and the other being in contract. I am therefore of the opinion that the matter of the statute of limitations is narrowed down to a question of the injunctive relief granted as tolling the statute. I have purposely set out in my findings of fact the prayer for relief in the Interpleader action, together with the order of Judge Baker enjoining and restraining the further prosecution of the action of the plaintiff in the State courts in West Virginia. It is evident from a study that the plaintiff was not precluded by said restraint from instituting this action or any comparable action against the defendant to recover on the facts alleged herein, and that to have done so without authority would not have constituted a contempt of Judge Baker’s order, and that upon motion made and had before him that such relief would have been granted; so that plaintiff may have been privileged to institute this action or any comparable action at any time during the pendency of the Inter-pleader cause.”

With this we agree.

It is true that Judge Baker’s injunction was somewhat indefinitely worded, restraining the Bank from “prosecuting any other suit or proceeding” against Fidelity “on account of the Policy of Insurance issued by the plaintiff” (Fidelity). Judge Baker, though, was interested only in protecting Fidelity against suits connected with the fund deposited in court by Fidelity, representing the cash surrender value of the policy. Actions against Fidelity for tortious misrepresentations as to the policy were 'beyond his ken and without his concern. He did not intend to prevent such actions. Indeed, we go further by stating that he had no power to issue so broad an injunction. The injunction granted by Judge Watkins was so carefully worded as to make it crystal clear that this injunction did not bar the instant action.

Our holding on the issue of the statutes of limitations is sufficient to dispose of this case and to justify affirmance of the judgment below. We, accordingly, express no opinion on the merits of this case — that is, on the validity of the Bank’s claim of fraud, deceit or misrepresentation against Fidelity.

The judgment of the District Court is affirmed.

Affirmed.