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STILWELL FROZEN FOODS v. NORTH BRITISH & M. INS.

July 5, 1960

STILWELL FROZEN FOODS, INC., A CORPORATION, PLAINTIFF,
v.
NORTH BRITISH AND MERCANTILE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

This case is before the court upon defendant's motion to dismiss.

The complaint contains sufficient jurisdictional allegations and the following pertinent paragraphs:

"II.

    "In August and September of 1959 plaintiff
  delivered to Zero Mountain, Inc. at the latter's
  place of business near Fayetteville, Arkansas,
  97,575 pounds of okra for freezing and storage.
  It was the duty of Zero Mountain, Inc., under its
  agreement with plaintiff, that it would freeze
  and store the okra in accord with accepted trade
  practices and redeliver the okra to the order of
  plaintiff upon its request. The said okra was
  delivered to Zero Mountain, Inc., in good
  condition and already packaged for freezing and
  storage. When plaintiff made demand upon Zero
  Mountain, Inc. for delivery of the okra to
  plaintiff's order it was then discovered that the
  okra, while in the care, custody and control of
  Zero Mountain, Inc., had become unfit for
  consumption and therefore valueless.

"III.

    "The value of the okra that became unfit for
  consumption while in the care, custody and
  control of Zero Mountain, Inc. was $18,464.40. In
  addition, Zero Mountain, Inc. charged the
  plaintiff the sum of $716.59 for freezing and
  storing the okra. Thus the total damage sustained
  by plaintiff as the result of the loss of its
  okra while in the custody of Zero Mountain, Inc.
  was $19,180.99.

"IV.

    "It is plaintiff's information and plaintiff
  therefore alleges that prior to the year 1959 the
  defendant had issued to Zero Mountain, Inc. a
  policy of insurance insuring against all loss
  sustained to vegetables and other property being
  stored by Zero Mountain, Inc. for its customers.
  This policy was in effect at all times material
  herein.

"V.

    "The plaintiff paid Zero Mountain, Inc. a
  consideration for the freezing and storing of the
  said okra, and thus plaintiff was a customer of
  Zero Mountain, Inc. at all times in question.
  Being a customer of Zero Mountain, Inc.,
  plaintiff has a right to recover the amount of
  its loss against the defendant, North British and
  Mercantile Insurance Company, under the above
  mentioned policy.

"VI.

    "Plaintiff states that it has made demand upon
  the defendant for payment of the said amount of
  $19,180.99, and has also made demand upon
  defendant that the latter make available to
  plaintiff for inspection the insurance policy
  issued by defendant to Zero Mountain, Inc. The
  defendant has denied any liability under said
  policy and has failed and refused to make
  available to plaintiff a copy of the said
  insurance policy for plaintiff's inspection."

Service was duly had on the defendant, and on June 1, 1960, defendant filed its motion to dismiss in which it alleged that "the complaint of the plaintiff fails to state a cause of action upon which a recovery may be had against this defendant for the following reasons":

    "1. The policy of insurance sued on by the
  plaintiff is a contract of

  insurance by and between Zero Mountain, Inc., and
  the defendant to which ...

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