Central State Savings & Loan Ass'n v. U.S. Fidelity & Guaranty Co.

• Decision Date: 29 July 1930
• Citation: 30 S.W.2d 774,224 Mo.App. 573
• Parties: CENTRAL STATE SAVINGS AND LOAN ASSOCIATION, RESPONDENT, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

30 S.W.2d 774

224 Mo.App. 573

CENTRAL STATE SAVINGS AND LOAN ASSOCIATION, RESPONDENT, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Springfield

July 29, 1930

Appeal from Greene County Circuit Court.--Hon. Warren L. White Judge.

REVERSED AND REMANDED AND CERTIFIED TO SUPREME COURT.

Judgment reversed and remanded.

Hanna & Hurwitz and Mann & Mann for appellant.

The giving of the two declarations complained of amount to the sustaining of a demurrer to the evidence on behalf of the plaintiff and, if there was any substantial evidence adduced on behalf of the appellant on any of the issues made by the pleadings, then the giving of the two declarations complained of was reversible error. De Graw v. Prior, 53 Mo 313; Lumber Co. v. Christophel, 62 Mo.App. 98; Butler County v. Boatmen's Bank, 143 Mo. 13; Vincent v. Means, 184 Mo. 327; Crossett v Ferrill, 209 Mo. 704; Eaton v. Cates, 175 S.W. 950; Bartlett v. Boyd, 175 S.W. 947; Goodyear Tire & Rubber Co. v. Ward, 195 S.W. (Mo. App.) 75; Jones v. Toledo, etc. Co., 202 S.W. (Mo. App.) 433; Jaicks v. Schoellkopf, 220 S.W. 486; Grams v. Novinger, 231 S.W. (Mo. App.) 265; Saucier et al. v. Kremer, 249 S.W. 640; Outcault Adv. Co. v. Mack, 259 S.W. (Mo. App.) 511; Warren v. Fritsch, 14 S.W. (2) (Mo. App.) 29; State ex rel. Brewing Co. v. Ellison, 286 Mo. 225, 232.

Borders, Borders & Warwick and H. T. Lincoln for respondent.

The giving of plaintiff's declarations of law numbered one and two was correct. These declarations, each directed to the claim asserted under the respective counts of plaintiff's petition, are nothing more than "a verdict found." Every appellate court in the State has so held. Stone v. Spencer, 77 Mo. 356, 361; Heynbrock v. Hormann, 256 Mo. 21, 164 S.W. 547, 551; Chaonia State Bank v. Sollars, 190 Mo.App. 284, 176 S.W. 263, 265; Kansas City ex rel. Neill v. Askew, 105 Mo.App. 84, 79 S.W. 483, 484; Kurre v. American Indemnity Co., 17 S.W.2d 685, 690; Helemuth v. Benoist, 144 Mo.App. 695, 129 S.W. 257; Falvey v. Hicks, 286 S.W. 385, 315 Mo. 442; Johnson v. Murray, 289 S.W. (Mo. App.) 977, 986; Buck v. McMinn, 300 S.W. (Mo. App.) 497, 500; Engleman v. Baker, 250 S.W. 919; Carpet Co. v. Hatton, 55 Mo.App. 320; Crescent Planing Mill Co. v. Spilker, 77 Mo.App. 409; Warren v. Fritsch, 14 S.W.2d 29, 30.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

This is an action upon a fidelity bond. Plaintiff recovered and defendant appealed.

The plaintiff is the successor to the Burton Building and Loan Association. At the time this suit was begun and for sometime prior thereto, the principal place of business of plaintiff was in Kansas City. It had two men acting as district agents at Springfield, Missouri, whose names were James B. Huffman and Eli Ashley Reid. These agents in the course of their employment collected large sums of money which it was their duty to remit to plaintiff at Kansas City. The defendant executed the bond sued upon by which it agreed to pay to plaintiff any pecuniary loss sustained by it occasioned by the fraud, dishonesty or criminal act of any of the employees of plaintiff listed thereunder. Huffman and Reid were listed and covered by the bond sued upon. Plaintiff alleged that these employees converted to their own use money belonging to plaintiff for which defendant was liable under the bond in suit.

The petition was in two counts. The first count applied to Huffman and Reid while acting together as partners and the second count applied to Reid alone.

The defendant by answer alleged several grounds of defense, which, in the view we take of our duty in this case, it will not be necessary to set out in detail. Suffice it to say that plaintiff made a rather clear case on the evidence and defendant produced substantial evidence tending to support some of these grounds of defense.

The trial was by the court, a jury being waived. At the close of all the evidence the court gave seven declarations of law asked by plaintiff and one for defendant and refused a number of declarations asked by each party. For plaintiff the court gave the following peremptory declarations of law:

"No. 1. The court declares the law to be that under the pleadings and the evidence in this case, the finding of the court must be in favor of the plaintiff and against the defendant upon the first count of plaintiff's petition."

No. 2 was in the same language at No. 1 except that it applied to the second count.

The appellant strenuously insists that giving these two declarations of law constituted reversible error. The contention being that the rule as to declarations of law given by a court when the trial is by the court without a jury is the same as applies to instructions to juries in trials by them. The respondent contends that in trials by the court the rule is different and a peremptory declaration of law by the court when the trial is before the court without a jury amounts to nothing more than an announcement before hand of what the finding of the court will be. Each side cites a number of cases decided by the Supreme Court and Court of Appeals in this State to sustain their several contentions and we find that the cases cited by appellant sustain its contention and the cases cited by respondent sustain its contentions, so, as we read the cases, there is an unreconcilable conflict in the holdings in different cases by the Supreme Court on that question. This court, of course, is bound by the latest decision of the Supreme Court and it is our duty to follow it regardless of our own judgment as to the question involved. By reason of that fact we shall review a few of the conflicting decisions of the Supreme Court on the effect of a peremptory declaration of law given in a trial before the court. As already suggested there are two line of cases by our Supreme Court, that, in our judgment, cannot be reconciled and yet none of these cases have been overruled, unless it be by implication, for no case takes any notice of any other case in conflict with it. The cases which hold that where there is evidence on both sides it is error for the court to give a peremptory declaration of law in a trial before the court without a jury began with DeGraw v. Prior, 53 Mo. 313, decided at the August term, 1873. The Supreme Court said in that case on pages 314-15: "At the close of the evidence the court, at the instance of plaintiff and against defendant's objection, declared the law to be 'that upon the evidence in this case, the plaintiff is entitled to recover.' This instruction is manifestly erroneous. It takes the whole case from the jury or from the court sitting as a jury and declares as a matter of law without any finding upon the evidence that the plaintiff is entitled to recover. Whether the plaintiff was entitled to recover depended upon the sufficiency and weight of the evidence in the cause on the two questions to be passed upon. It was not for the court but the jury, or which is the same thing, the court sitting as a jury, to pass upon the sufficiency and weight of the evidence."

In Crossett v. Ferrill, 209 Mo. 704, 108 S.W. 52, decided February 26, 1908, at pages 706-7 it is said: "The record discloses that the court gave a number of instructions for plaintiff and defendant submitting their respective theories of the case to the court. In addition thereto, the court gave for the defendant the following instruction:

"7. The court instructs the jury that under the law and the evidence in this case the plaintiff is not entitled to recover and your verdict will, therefore, be for defendant." This is worded as an instruction to the jury but the trial was had before the court without a jury. The court held that plaintiff had made a prima-facie case and the court 'should have passed upon the facts and should have refused peremptory instruction No. 7 to find for the defendant." The court further said: "The instructions given by the court on behalf of the plaintiff and the first six given at the request of the defendant properly declared the law in the case but the giving of No. 7 for defendant in effect, withdrew all the instructions given for both plaintiff and defendant and peremptorily required the finding to be for defendant."

"That action of the court was clearly reversible error . . . ."

In Bartlett v. Boyd, 175 S.W. 947, decided March 2, 1912 the contest was over a boundary line between two landowners. The court gave a declaration of law as follows: "The court declares the law to be that the plaintiff has not shown the establishment of an agreed boundary line between the lands of plaintiff and defendant or any part of the same described in plaintiff's petition and on which a recovery is sought in this case." The court held that plaintiff had made a prima-facie case and for that reason the giving of this peremptory declaration of law was reversible error and in the discussion of the question, said, "This evidence should not have been excluded from the view of the trier of the facts or dismissed without any consideration as appears to have been done in the giving of the declaration of law. That instruction should have been framed so as to predicate the legal conclusion therein stated upon the failure of the court to find a preponderance of the evidence to support the theory that the parties to the controversy had recognized or acquiesced in an agreed boundary line . . . . Had it been couched in such form it would have clearly shown a recognition and consideration by the learned trial judge of the facts and circumstances tending to support that theory." Thus holding that by giving a peremptory declaration of law against plaintiff, the court declared that it would not consider plaintiff's...