
    FIDELITY & CASUALTY CO. OF NEW YORK v. SCHAMBS.
    
    (Circuit Court of Appeals, Sixth Circuit
    March 11, 1920.)
    No. 3328.
    Pleading @=»345(1) — Insured entitled to judgment on pleadings.
    Under the contract of insurance in suit, as construed by the appellate court on a former review, plaintiff held entitled to judgment on the pleadings.
    In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.
    Action by Wallace I,. Schambs, trustee in bankruptcy of Hudson D. Fowler, against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    See, also, 259 Fed. 55,-C. C. A.-.
    
      Howell, Roberts & Duncan, of Cleveland, Ohio, for plaintiff in error.
    Payer, Winch, Minshall & Karch, of Cleveland, Ohio, for defendant in error.
    Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
    
      
      Certiorari denied 252 U. S. —, 40 Sup. Ct. 586, 64 L. Ed. —.
    
   PER CURIAM.

The question here presented is fully covered by the opinion of this court in case No. 3236. In the first trial of this cause in the District Court there was a judgment for the defendant, the Fidelity & Casualty Company of New York, which was reversed by this court. The reasons for reversal are fully stated in the opinion. 259 Fed. 55,-C. C. A.-. This court in that case construed the contract in suit, and among other things held that the parties—

“intended that kind of a loss which, in ordinary nomenclature and thought, comes into existence when the liability of the assured becomes irretrievably fixeu.”

The petition avers in substance that the liability of the assured has been irretrievably fixed by the judgment of a court of competent jurisdiction. The answer admits the truth of this averment. Therefore the District Court properly sustained the motion for a judgment on the pleading.

Judgment affirmed.  