fort Smith-Van Buren Bridge District v. Johnson

• Decision Date: 03 March 1930
• Docket Number: 179
• Citation: 25 S.W.2d 417,181 Ark. 161
• Parties: FORT SMITH-VAN BUREN BRIDGE DISTRICT v. JOHNSON
• Court: Arkansas Supreme Court

25 S.W.2d 417

181 Ark. 161

FORT SMITH-VAN BUREN BRIDGE DISTRICT v. JOHNSON

No. 179

Supreme Court of Arkansas

March 3, 1930

Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; reversed in part.

Cause affirmed in part and reversed and remanded in part.

J. B McDonough, for appellant.

Hill Fitzhugh & Brizzolara and Warner & Warner, for appellees.

HUMPHREYS J. Mr. Justice KIRBY dissents.

OPINION

HUMPHREYS, J.

Appellant, a bridge improvement district, brought suit against the collector of its revenues and the American Surety Company, which made his bond, in the circuit court of Sebastian County, Fort Smith District, to recover an alleged shortage of $ 1,250.67 in the collector's account with it. The complaint alleged that, before the collector entered upon his duties and obligations to collect the assessment of benefits in the district from the property owners therein, he was required to give a bond in the sum of $ 10,000, which was made by his co-appellee, American Surety Company of New York, the material part of which is as follows:

"We, William Dewey Johnson, as principal and the American Surety Company of New York, as surety, bind ourselves to pay Fort Smith & Van Buren Bridge District, Forth Smith, Arkansas, as obligee, such pecuniary loss, not exceeding ten thousand and no/100 dollars, as the latter shall have sustained of money or other personal property by any act or acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction, or willful misapplication on the part of the principal, directly or through connivance with others, while holding the position of collector in the service of the obligee."

The complaint alleged, as one of the grounds for a recovery against its collector that he collected $ 1,250.67 of its revenues which he failed and refused to turn over to it on December 29, 1927, at the time same became due.

The complaint also alleged as a ground for recovery against both its collector and his surety on the bond, the appellees herein, that its collector willfully misapplied said money.

Appellees filed separate answers to the complaint denying the alleged shortage in the accounts, the willful misapplication of the revenues collected, or the violation of any of the terms or conditions of the surety bond sued upon. In addition to these denials, the American Surety Company said that, if the collector, its co-appellee, failed to account to appellant for the sum of $ 1,250.67, or any other sum or amount whatsoever, such failure was due solely to the fact that said sum of money was stolen from the office of appellant, and without the knowledge or consent of Johnson, the collector, and that it was not obligated under the terms of the bond for moneys or property stolen, embezzled, wrongfully, abstracted or willfully misapplied by third persons, without the knowledge and consent of the said Johnson, and without his connivance therein.

The cause was submitted to the jury upon the testimony adduced by the respective parties on conflicting evidence as to whether there was a shortage; if so, whether the fund was willfully misapplied by Johnson, the collector, or whether stolen by a third party under the theory that the bond sued upon was strictly a fidelity bond, and not a statutory bond, and that, in order for appellant to recover from either or both of the appellees for a shortage in the accounts of its collector, it must appear from the weight of the testimony that the shortage resulted from fraudulent or dishonest acts of appellant's collector. The jurymen were told by the trial court that the bond sued upon only covered loss of funds through fraudulent or dishonest acts of appellee, Johnson, and if they believed, from the evidence in the case, that some person or persons, other than Johnson, stole the funds of appellant, they should return a verdict for appellees.

The trial of the cause resulted in a verdict and judgment for app...