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STILWELL FROZEN FOODS v. NORTH BRITISH & M. INS.
July 5, 1960
STILWELL FROZEN FOODS, INC., A CORPORATION, PLAINTIFF,
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
The complaint contains sufficient jurisdictional allegations
and the following pertinent paragraphs:
"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.
"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.
"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
"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
"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":
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