Bradley v. Fid. & Cas. Co. of N.Y.

• Citation: 14 A.2d 894
• Court: Superior Court of Pennsylvania
• Decision Date: 19 July 1940
• Parties: BRADLEY v. FIDELITY & CASUALTY CO. OF NEW YORK.

14 A.2d 894

BRADLEY
v.
FIDELITY & CASUALTY CO. OF NEW YORK.

Superior Court of Pennsylvania.

July 19, 1940.

Application for Allocatur Refused Sept. 10, 1940.

14 A.2d 895

Appeal No. 187, April term, 1940, from judgment of Court of Common Pleas, Allegheny County, at No. 1255, January term, 1936; Joseph A. Richardson, Judge.

Action of assumpsit by Paul R. Bradley, doing business as the Automatic Canteen Company of Pittsburgh, against the Fidelity & Casualty Company of New York, to recover on a fidelity bond, wherein verdict was rendered for plaintiff for $2,671.04, with interest. From a judgment setting aside the verdict to the extent that it exceeded $1,000, plus interest, plaintiff appeals.

Affirmed.

Argued before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES, and HIRT, JJ.

John E. Laughlin, Jr., Donald W. Ebbert, and Thorp, Bostwick, Reed & Armstrong, all of Pittsburgh, for appellant.

John C. Sherriff, Paul E. Hutchinson, and Sherriff, Lindsay, Weis & Hutchinson, all of Pittsburgh, for appellee.

CUNNINGHAM, Judge.

Plaintiff brought this action of assumpsit to recover $2,671.04, plus interest, as the amount allegedly due him under the terms of a fidelity bond issued by the defendant company. The amount sued for represents the total defalcations of an employee, Joseph L. Rigby, over a period of three years. Defendant's affidavit of defense put the entire claim in issue, and at the trial it submitted a point for charge to the effect that its maximum liability under the bond could, in no event, exceed $1,000, with interest. The trial judge reserved the question of law thus raised, and submitted the case to the jury, which rendered a verdict in favor of the plaintiff for the full amount of the claim.

Subsequently the court in banc ordered the point of law reserved to be marked affirmed and set aside the verdict to the extent that it exceeded $1,000, plus interest. Judgment was entered accordingly, and we now have this appeal by the plaintiff.

As the controversy comes before us in the form of a "Statement of the Case," filed under our Rule 56, we shall confine ourselves to the matters therein contained.

Rather extensive quotations from the bond are essential to an understanding of the issue. Omitting those sections which are not here relevant, the bond provides: "Schedule Standard Fidelity Bond No. 1470797.

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"The Fidelity and Casualty Company of New York, hereinafter called the Surety, does hereby agree to indemnify Paul R. Bradley, d. b. a., Automatic Canteen Company, of Pittsburgh, Pennsylvania, hereinafter called the Employer, against the loss of any money * * * through the * * * dishonesty of any Employee named in the schedule forming part of this bond * * * while such Employee holds any position at any place in the service of the Employer while this bond is in force.

"The foregoing agreement is subject to the following conditions:

"1. The term of this bond begins on the 13th day of October, 1932, and continues in force until terminated or canceled as hereinafter provided.

"2. Without prejudice to the rights of the Employer as respects anything that may occur during the period that the bond is in force, the Surety may cancel this bond at any time by a written notice stating when the cancelation takes effect * * * The Employer may cancel this bond by like notice to the Surety. * * *

"3. The liability of the Surety on account of any one Employee shall not exceed the amount set opposite the said Employee's name in the said schedule. * * *

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"10. If this bond is issued as a continuation of a bond previously issued by the Company to the Employer, the Company shall be liable under this bond for any loss discovered...