Continental Casualty Co. v. First Nat. Bank
| Decision Date | 11 February 1941 |
| Docket Number | No. 9476.,9476. |
| Parties | CONTINENTAL CASUALTY CO. v. FIRST NAT. BANK OF TEMPLE. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Allen Wight, of Dallas, Tex., for appellant.
Walker Saulsbury and Byron Skelton, both of Temple, Tex., for appellee.
Before FOSTER and SIBLEY, Circuit Judges, and DAWKINS, District Judge.
This is an appeal by the surety company from an adverse judgment on its bond given to protect the bank against dishonesty of its employees. The principal complaint of the appellant is that the evidence was such that the jury's verdict was and could have been based only upon speculation, and but for certain alleged erroneous rulings upon evidence and instructions to the jury by the lower court, no definite loss could have been established under the bond.
The plaintiff was the successor to a previous bank of the same name, except that, as was done in numerous instances in over-night reorganizations throughout the country following the chaotic banking conditions of the early 1930's, the word "of" was substituted for "in" as a part of the name of the new bank, and as in the other instances, took over the liquid assets and assumed all liability to the depositors. The persons whose dishonesty is involved were employees of both banks, and were shown to have been guilty of similar acts both before and after the transfer.
The obligation of the bond was to "indemnify * * * against the direct loss, sustained while this bond is in force and discovered as herein provided, of any money or securities, or both as defined in Section 5 hereof, in which the insured has a pecuniary interest, or held by the insured as collateral or as bailee and whether the insured is liable therefor * * * through any dishonest act wherever committed of any of the employees * * * whether acting alone or in collusion with others * * *."
Section 5 of the bond defined the word "money" in the usual terms, and securities as including: "* * * money orders (express, postal, pension, bank), bonds, debentures, scrip, warrants, checks, coupons, drafts (demand and time), bills of exchange, acceptances, promissory notes, certificates of deposit, certificates of stock, warehouse receipts, bills of lading and all other instruments of negotiable character, as respects which, if negotiated, the Insured would have no recourse against an innocent holder."
In its original petition, the plaintiffs sued upon some nineteen items. The court, prior to the trial before the jury, appointed an accountant with powers of an examining master, who, after a lengthy hearing of witnesses and consideration of documentary evidence, made a report concluding that only ten items had been proven. Thereupon, the plaintiff amended its petition so as to demand payment only of the items so recognized by the accountant. The case before the jury was, by consent, tried upon this note of evidence plus mainly the testimony of expert accountants, including the one who had acted as the examiner. The latter, in his report to the court, concluded with the statement that, of the total of $17,769.89, defalcations of the employees, "$12,204.46 represents a shortage in the First National Bank of Temple (the new bank) and $5,577.51 represents a shortage in the First National Bank in Temple" (the old bank).
In the course of the trial, the court permitted Upleger, the examining accountant, and other experts to testify with respect to the several transactions upon which the items of the claim are based, to the effect that each had traced the same through the books and records of the bank. Thereupon they were interrogated and gave answers to questions in a manner of which the following is an example: ...
To continue reading
Request your trial
-
Sharp v. Lucky
...v. Bennett, 5 Cir., 1953, 201 F.2d 434; Saenz v. Kenedy, 5 Cir., 1949, 178 F.2d 417, 419; Continental Casualty Co. v. First National Bank, 5 Cir., 1941, 116 F.2d 885, 887, 135 A.L.R. 1141; and Jemison v. Commissioner of Internal Revenue, 5 Cir., 1930, 45 F.2d 4, 30 "The Supreme Court in the......
-
Brown v. Buchanan
...said: While it is true that fraud and dishonesty may never be presumed and left to mere speculation, Continental Casualty Co. v. First Nat'l Bank, 116 F.2d 885 (C.A. 5, 1941), cert. denied 313 U.S. 575, 61 S.Ct. 1087, 85 L.Ed. 1533 (1941), more is not required than that it be established by......
-
In re Leedy Mortg. Co., Inc.
...loan company officers, to obtain credit from loan companies not within the scope of fidelity bond); Continental Casualty Co. v. First National Bank of Temple, 116 F.2d 885 (5th Cir.1941) (Judgment for insured of fidelity bond reversed because of erroneous jury instructions which failed to p......
-
Estate of Jordan by Jordan v. Hartford Acc. and Indem. Co.
...The court based that dicta on its earlier holding in USAFORM. The court in USAFORM relied primarily upon Continental Cas. Co. v. First Nat'l Bank of Temple, 116 F.2d 885 (5th Cir.), cert. denied, 313 U.S. 575, 61 S.Ct. 1087, 85 1533 (1941). 5 Our Court of Appeals opinion in the case before ......