164 F.2d 149 (5th Cir. 1947), 12060, Bank of Commerce v. Hartford Acc. & Indem. Co.

Docket Nº:12060.
Citation:164 F.2d 149
Party Name:BANK OF COMMERCE v. HARTFORD ACCIDENT & INDEMNITY CO. et al.
Case Date:November 07, 1947
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 149

164 F.2d 149 (5th Cir. 1947)

BANK OF COMMERCE

v.

HARTFORD ACCIDENT & INDEMNITY CO. et al.

No. 12060.

United States Court of Appeals, Fifth Circuit.

Nov. 7, 1947

W. W. Dykes, S. H. Dykes, and Wingate Dykes, all of Americus, Ga., and Bentley H. Chappell and Samuel E. Kelly, Jr., both of Columbus, Ga., for appellant.

Elliott Goldstein and B. D. Murphy, both of Atlanta, Ga., R. R. Jones, of Dawson, Ga., and Hyliard B. Williams, of Americus, Ga., for appellees.

Before SIBLEY, HOLMES, and LEE, Circuit Judges.

HOLMES, Circuit Judge.

This is an action for damages for a loss alleged to have resulted directly from the fraudulent conversion of designated quantities of oats, corn, peanuts, and other commodities in the custody of one Richard Frazier. It was brought by appellant, the Bank of Commerce, as obligee in a fidelity bond, against the appellee, the Hartford Accident & Indemnity Company, the obligor in said bond. On motion of the latter in the court below, the principal in the fidelity

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bond, Richard Frazier, was made a third party defendant, who would be liable to the Indemnity Company if the latter should be held liable to the original plaintiff, the Bank of Commerce.

After an extended trial on the merits, the district court gave a directed verdict for the defendant. Such verdict being rendered, judgment was entered thereon, and this appeal followed. The question presented on this appeal is whether there was sufficient evidence to require the court below to submit the case to the jury. This depends upon whether there was substantial evidence to support a verdict for the plaintiff; and, in the last analysis, this question comes down to the alleged fraudulent intent of the custodian. If the evidence was sufficient to warrant a finding of such fraudulent intent, the issue should have been left to the jury; otherwise, it should not. There was evidence to warrant the jury in finding the following facts:

The Farmers Exchange, Inc., of Dawson, Georgia, managed and largely owned by J. W. Duskin, was engaged in the purchase and sale of oats, cotton, corn, peanuts, and other farm commodities. Prior to the year 1944, said Exchange had done some of its business with the Bank of Commerce of Americus, Georgia. Beginning in the season of 1944, in order to increase its line of credit with the bank and because the bank required such method of...

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