Detroit Fidelity & Surety Co. v. United States

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: STONE and BOOTH, Circuit , and WYMAN
• Citation: Detroit Fidelity & Surety Co. v. United States, 59 F.2d 565 (8th Cir. 1932)
• Decision Date: 05 May 1932
• Docket Number: No. 9306.,9306.
• Parties: DETROIT FIDELITY & SURETY CO. v. UNITED STATES.

59 F.2d 565 (1932)

DETROIT FIDELITY & SURETY CO. v. UNITED STATES.

No. 9306.

Circuit Court of Appeals, Eighth Circuit.

May 5, 1932.

Samuel P. Halpern, of Minneapolis, Minn. (R. S. Rutchick, of St. Paul, Minn., on the brief), for appellant.

Lewis L. Drill, U. S. Atty., and O. A. Blanchard, Asst. U. S. Atty., both of St. Paul, Minn.

Before STONE and BOOTH, Circuit Judges, and WYMAN, District Judge.

WYMAN, District Judge.

This appeal involves the review of a judgment of the District Court of the United States for the District of Minnesota, in a certain scire facias proceeding instituted by the United States of America against one Naomi Fargo and Detroit Fidelity & Surety Company, to enforce a judgment of forfeiture made and entered on the 26th day of September, 1930, against the said parties as principal and surety, respectively, in a certain bail bond or recognizance, which was filed in the office of the clerk of said court on the 12th day of May, 1930, in a criminal proceeding then pending in said court against said Naomi Fargo.

The material facts as disclosed by the record were as follows: Naomi Fargo was arrested for alleged violations of the National Prohibition Act (27 USCA), and thereafter, on May 10, 1930, was released from custody upon the execution and delivery of the bail bond above referred to which was conditioned for the appearance of said Naomi Fargo before said United States District Court on the 9th day of June, 1930, and from day to day and from term to term thereafter to which said case might be continued. On September 23, 1930, which was the first day of the September, 1930, term of said court, defendant Fargo appeared and entered plea of not guilty, and on September 26, 1930, she failed to appear, and left the state of Minnesota, arriving at Hutchinson, Kan., on the 27th day of September, 1930, where she remained until her death, which occurred on November 19, 1930. On September 26, 1930, the bail was declared forfeited by the court, and an order was obtained for the issuance of the writ of scire facias. The indictment found and returned against said Naomi Fargo was, on motion of the United States District attorney, nolled and dismissed on March 3, 1931. Upon the return of the writ of scire facias, the appellant, Detroit Fidelity & Surety Company, filed its separate traverse and answer therein, admitting the execution and delivery of the recognizance, and alleging upon information and belief that the said Naomi Fargo appeared personally before said court on the 9th day of June, 1930, pursuant to the requirements of said bail bond, at which time said criminal proceeding was continued until the September, 1930, term of said court; that the said Naomi Fargo appeared personally before the said court at the opening day of September, 1930, term thereof, and each day thereafter until on or about the 26th day of September, 1930, when "by reason of the abnormal mentality and mental derangement rendering said Naomi Fargo irresponsible for her actions, she failed to make further appearance before said court."

Said answer further alleges: "Further answering, this answering defendant alleges that the case in which the said Naomi Fargo was charged by an indictment with having violated the National Prohibition Act in several respects was continued from the September, 1930, term of this court to the March, A. D. 1931 term of this court, and that at the opening of said March, 1931, term of this court, upon motion of the plaintiff in said action, the United States of America, the indictment indicting the said defendant, Naomi Fargo, and charging her with the commission of certain offenses in violation of the National Prohibition Act, was nolled and said cause dismissed" — and concludes with the general denial of the recitals contained in the writ except such as are specifically admitted, qualified, or avoided by said answer.

The issues thus presented were tried to a jury, and at the conclusion of the trial both sides moved the court for a directed verdict, and the court directed a verdict in favor of the government.

Since both sides moved for a directed verdict, the determination of the facts in the case by the court has the same force and effect as a verdict of a jury, and the decision, if supported by any substantial evidence, cannot be disturbed on appeal. Southern Surety Co. v. Fidelity & Casualty Co., 50 F.(2d) 16 (C. C. A. 8); U. S. v. De Armond, 48 F.(2d) 465 (C. C. A. 8); Queensboro Natl. Bank v. Kelly, 48 F.(2d) 574 (C. C. A. 2); N. Y. Life Ins. Co. v. Ollich, 42 F.(2d) 399 (C. C. A. 6); C. F. Childs & Co. v. Harris Trust & Savings Bank, etc., 27 F.(2d) 633 (C. C. A. 7).

Upon the trial the court refused to permit several lay witnesses, sworn on behalf of appellant, to express an opinion as to the sanity of Naomi Fargo, after each of said witnesses had testified as to their acquaintance with the said Naomi Fargo, and their observation of her conduct, conversation, and appearance. The several rulings of the trial court in this regard were duly excepted to and are now assigned as error by appellant, and if, as contended by appellant, the mere fact that Naomi Fargo was insane and mentally irresponsible at the time of the default constituted a defense to the scire facias proceeding, then the question as to the correctness of these rulings of the trial court becomes material, but if, as contended by the government, the mere fact of the insanity or mental irresponsibility of Naomi Fargo is not a defense, the rulings complained of could not result in prejudice to the appellant because of the lack of materiality of the excluded evidence. This brings us to the consideration of the question as to whether or not the insanity of the principal is a defense available to the surety upon forfeiture of a bail bond by reason of default. There seems to be more or less conflict in the authorities as to this question. That insanity is a valid defense seems to have been held in Smith v. People of State of Colorado, 67 Colo. 452, 184 P. 372, 7 A. L. R. 392. See, also, 3 R. C. L., Page 55, § 67; 6 C. J. 946-1053, and the following cases: Commonwealth v. Craig, 6 Rand. (Va.) 732; Baker v. State, 23 Tex. App. 657, 5 S. W. 130; Scully v. Kirkpatrick, 79 Pa. 324, 21 Am. Rep. 62; People v. Tubbs, 37 N. Y. 586; People v. Manning, 8 Cow. (N. Y.) 297, 18 Am. Dec. 451; Chase v. People, 2 Colo. 481.

On the other hand, it has been held that insanity and illness are not defenses. Bowerbank v. Payne, Fed. Cas. No. 1727; Severson v. Macomber, 212 N. Y. 274, 106 N. E. 72; Ringeman v. State, 136 Ala. 131, 34 So. 351. Some of these cases were cases of illness instead of insanity. There would seem, however, no valid reason for distinguishing insanity from any other disease or disability in this connection, and, in our opinion, the rule established by the best-considered cases seems to be that any illness or disability, the result of disease or conditions beyond the prevention or control of human agency, is regarded as an "Act of God," but, in order to constitute a sufficient defense to relieve one of the consequences of a default or breach of an obligation, the...