American Employers' Ins. Co. v. Johnson

• Decision Date: 24 February 1932
• Docket Number: No. 8752.,8752.
• Citation: 47 S.W.2d 463
• Parties: AMERICAN EMPLOYERS' INS. CO. v. JOHNSON.
• Court: Texas Court of Appeals

47 S.W.2d 463

AMERICAN EMPLOYERS' INS. CO. v. JOHNSON.

No. 8752.

Court of Civil Appeals of Texas. San Antonio.

February 24, 1932.

Rehearing Denied March 23, 1932.

Appeal from District Court, Webb County; R. D. Wright, Judge.

Action by S. M. Johnson against the American Employers' Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hicks, Dickson, Bobbitt & Lange, of San Antonio, for appellant.

Phelps & Phelps, of Laredo, for appellee.

COBBS, J.

Appellee sued the American Employers' Insurance Company to recover $1,953.83, on a certain fidelity bond, alleging that while said indemnity bond was in full force and effect, by reason of certain acts on the part of Dionisio E. Ochoa, the bonded employee under said bond, appellee suffered a pecuniary loss in the sum of $1,953.83, interest thereon, and costs of suit. The case was tried without a jury and the court rendered judgment for said amount, interest, and costs. The appellant has appealed from said judgment to this court. The court filed its findings of fact, but refused appellant's request for additional findings.

Appellant has filed numerous assignments of error and in addition thereto filed his points upon which this appeal is predicated. The first point is that: "In order to recover against the surety company on said bond, the insured employer must prove the loss sustained to be by reason of said act or acts on the part of the bonded employee, and where, as in this case, the only proof adduced tends to show an alleged shortage without accounting for the cause of such alleged shortage, such proof is not sufficient to sustain a judgment against the surety company on its bond for the amount of such alleged shortage."

The allegations in the petition are:

"That on the 24th day of November, 1928, and ever since he has maintained a place of business in Laredo, Texas, and in that place of business has various employes; that among said employes, on November 24th, 1928, there was one Dionisio E. Ochoa, who was employed by plaintiff in the capacity of bookkeeper and cashier, and on the said 24th day of November, 1928, the defendant issued to the plaintiff in behalf of his employe, Dionisio E. Ochoa, its certain bond No. F B-25810 in the sum of Five Thousand and No/100 ($5,000.00) Dollars and in consideration of the premium then and there paid of the sum of Thirty-seven and fifty/100 ($37.50) Dollars, wherein and whereby, the said defendant agreed to reimburse plaintiff, the employer, for such pecuniary loss not exceeding five thousand and no/100 ($5000.00) Dollars, as the said employer shall have sustained of money or other personal property (including that for which the employer is responsible) by any act or acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction or wilful misapplication on the part of Dionisio E. Ochoa, Laredo, Texas, (hereinafter called the employe) directly or through connivance with others, committed by the employe in connection with the duties of any position to which he may be assigned by the employer during the term of this bond or of any renewal thereof; that said bond continued in full force and effect to the 21st day of November, 1929, when the said defendant issued its fidelity continuation certificate No. 23094, for the consideration of a premium of Thirty-seven and fifty/100 ($37.50) Dollars then and there paid by the plaintiff to the defendant and which continued in full force and effect the said fidelity bond of the said Dionisio E. Ochoa, bookkeeper and cashier, until noon the 21st day of November, 1930, and which original bond and the continuation thereof have heretofore been delivered by the defendant into the possession of the plaintiff.

"Plaintiff shows unto the Court that the said Dionisio E. Ochoa was employed by him in the capacity of bookkeeper and cashier and in that capacity it was his duty to keep the books of plaintiff correctly and to receive on behalf of plaintiff and account to him for all funds, including cash, coming into his hands belonging to plaintiff and such other funds, including cash, for which plaintiff was responsible.

"Plaintiff shows to the Court that some time previous to the 1st day of September, 1930, he discovered that his said employe, the said Dionisio E. Ochoa, was short in his accounts with plaintiff in the sum of One Thousand, nine hundred, fifty-three and 83/100 ($1,953.83) Dollars, and that said sum of money had been taken from him during a period of several months, beginning not earlier than the 1st day of July, 1929, and ending a short time previous to the 1st day of September, 1930, and while the fidelity bond of defendant herein declared upon was in full force and effect according to the terms thereof.

"Plaintiff alleges that during the time hereinbefore mentioned, the said Dionisio E. Ochoa, while acting in his capacity as bookkeeper and cashier, and as such in charge of the funds and cash of plaintiff (including funds and cash for which plaintiff was responsible) did take from the possession of plaintiff, without the knowledge and consent of plaintiff, the sum of One Thousand, nine hundred, fifty-three and 83/100 Dollars, and did take said funds and cash under such circumstances, including stealth, concealment and failure to render an accounting as to constitute and was such fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction and wilful misapplication on the part of his said employe as is contemplated by the fidelity bond issued by defendant to plaintiff and hereinbefore mentioned.

"Plaintiff alleges that as soon as he discovered the pecuniary loss occasioned to him by the acts of his employe, the said Dionisio E. Ochoa, he immediately called upon the said Ochoa for an accounting thereof, and the said Ochoa failing to account to plaintiff therefor or to repay such losses, he immediately notified the defendant of such pecuniary loss and at the request of the defendant, on or about September 6th, 1930, he executed and forwarded to the defendant Proof of Loss in connection therewith, but that to the date of the filing of this petition, the said defendant has failed and refused, and still fails and refuses, to pay to the plaintiff any part of the said sum of One Thousand, Nine Hundred, Fifty-three and 83/100 ($1,953.83) Dollars, for the payment of which sum the defendant is bound by reason of its bond duly made and delivered as hereinbefore set forth, and the pecuniary loss suffered by plaintiff by reason of the breach of fidelity committed by his said employe, Dionisio E. Ochoa, during the time when said bond was in full force and effect, to the plaintiff's damage in the sum of $1,953.83."

Appellant filed special exceptions. The court overruled special exceptions Nos. 1 and 2, but sustained special exception No. 3, in part, and overruled it in part; the order of the court being as follows: "Special exception No. 3 be and it is sustained as to the allegation in paragraph 4 of plaintiff's said petition that the funds were taken `under such circumstances, including stealth, concealment and failure to render accounting therefor,' the...