Fletcher Savings & Trust Co. v. National Surety Co.
| Decision Date | 07 November 1935 |
| Docket Number | 14,955 |
| Citation | 198 N.E. 99,101 Ind.App. 61 |
| Parties | FLETCHER SAVINGS & TRUST COMPANY ET AL. v. NATIONAL SURETY COMPANY |
| Court | Indiana Appellate Court |
From Marion Superior Court; Clarence E. Weir, Judge.
Action by Fletcher Savings and Trust Company and another as receivers of German Investment and Securities Company against National Surety Company on a fidelity bond. From a judgment for defendant on demurrer to the answer, plaintiffs appealed.
Affirmed.
Samuel D. Miller, Sidney S. Miller and George R. Jeffrey, for appellants.
Romney L. Willson and Russell Willson, for appellee.
The appellants brought this suit against the appellee to recover upon a surety bond issued by the appellee by the terms of which the surety agreed to indemnify the German Investment & Security Company against loss "not exceeding twenty thousand ($ 20,000.00) dollars, of any money or other personal property (including money or other personal property for which the Employer is responsible) through the fraud dishonesty, forgery, theft, embezzlement, or wrongful abstraction of George Seidensticker, hereinafter called the Employee, directly or in connivance with others, while the Employee is engaged in the services of the Employer, while this bond is in force."
To the amended complaint there were filed by the appellee two paragraphs of answer which constitute the basis of the appeal here. To these two paragraphs of answer appellants addressed demurrers, which demurrers were overruled. Exceptions were duly taken, following which there was a refusal to plead further, and judgment was rendered for the appellee for costs. The error assigned is the action of the court in overruling these two demurrers.
The third paragraph of answer alleged that in January, 1920 appellants sued George Seidensticker and nine other men, naming them, for a large number of losses, including the identical losses described in the complaint in the instant cause and alleged in said complaint to have been caused by the dishonest acts of said Seidensticker during the term of the bond sued on in connivance with other officers, directors and employees of said German Investment & Securities Company. The said Seidensticker was the same Seidensticker named as appellee's principal in the instant complaint.
That said former complaint alleged that all of said losses, including the losses sued for in the instant complaint, were caused by the negligent and fraudulent acts of said Seidensticker as manager and employee (and not merely as director), and by his acts of misfeasance and nonfeasance in managing the affairs of said company, and that his co-defendants as directors connived with him in the performance of said acts and negligently permitted him to perform such acts.
Said third paragraph of answer then further avers that said former complaint alleged that said Seidensticker, with the negligent connivance of his co-defendants, had doctored the books and wrongfully paid dividends, including the identical $ 6,000.00 sued for in the instant complaint, and negligently loaned money to contractors, knowing them to be insolvent and worthless, including the identical losses sued for in the instant complaint, and that the former complaint had prayed judgment for all said losses.
It further alleged that appellants had recovered judgment in the sum of $ 349,510.00 against said Seidensticker and the other defendants in said former cause, and that said judgment was fully paid and satisfied by Seidensticker and the other defendants.
Said paragraph of...
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