Goldman v. Fid. & Deposit Co. of Md.

• Decision Date: 23 June 1905
• Citation: 125 Wis. 390,104 N.W. 80
• Court: Wisconsin Supreme Court
• Parties: GOLDMAN v. FIDELITY & DEPOSIT CO. OF MARYLAND.

125 Wis. 390

104 N.W. 80

GOLDMAN

v.FIDELITY & DEPOSIT CO. OF MARYLAND.

Supreme Court of Wisconsin.

June 23, 1905.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by H. Goldman against the Fidelity & Deposit Company of Maryland. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action upon a bond conditioned for the reimbursing to the plaintiff such pecuniary loss as he might suffer by any act of larceny or embezzlement on the part of one O'Brien, his employé; the complaint alleging an embezzlement to the amount of $470. The bond was issued upon the application of O'Brien, but, before its issue, a statement from the plaintiff was obtained upon a written blank declaring that the company desired answers to the questions therein as conditions precedent and as the basis of the bond applied for, answers to which questions were inserted by plaintiff, and the same signed by him. The bond provided it should become void if the employer should fail to notify the company of the discovery of any act which might be made the basis of any claim thereunder, immediately after it should come to the knowledge of the employer. The plaintiff's written statement, among other things, declared that the largest amount of cash in the custody of O'Brien at any one time was “about $50.00,” which would remain in his control for about a week; that he would send in moneys every week, and make regular settlement once a month; also that O'Brien had been in plaintiff's employ for about six months, and that his accounts had been examined the month previous to the application and found correct. The answer alleged the falsity and failure to observe some of these declarations, and also failure of plaintiff to immediately file with defendant an itemized claim for certain embezzlements by O'Brien committed between May 1 and June 18, 1902, and made the basis of this action. A special verdict was taken, in which the jury found (1) prior employment of O'Brien for six months; (2) examination of his accounts the month prior to plaintiff's written statement; (3) that the duties of O'Brien as employé made him the custodian of a larger amount than about $50 of plaintiff's cash at any one time; (4) that such amounts were not left in O'Brien's hands longer than about a week; (5) that plaintiff did require of O'Brien monthly statements, and examined his books to ascertain their correctness; (6) that he did give immediate notice upon discovery of the fact of O'Brien's conversion of money or goods; and (7) did immediately file his itemized claim, and that the amount of the embezzlement was $470.40. Before verdict, defendant moved for direction of verdict in his favor; after verdict, upon motion to change certain answers by the respective parties, the court changed the answer to the sixth question from “yes” to “no,” but held that the undisputed evidence showed a waiver of any forfeiture resulting from the omission to immediately notify defendant, and also held that the third answer, while not changed, had no evidence to support it, further than the fact that in the last interval O'Brien did obtain possession of $106 of plaintiff's money. He also held there was no evidence to support a finding of more than $398.54 as converted, and accordingly rendered a judgment for that sum, with interest and costs, from which the defendant appeals.Samuel H. Cady, for appellant.

Wigman, Martin & Martin, for respondent.

DODGE, J. (after stating the facts).

Certain general views and conclusions will dispose of a considerable number of the very many objections raised by appellant to a recovery upon the guaranty bond, without the necessity of detailed consideration. Among such is the rule that neither falsity of any of the statements contained in plaintiff's so-called “application,” whether they be deemed representations or warranties, nor any omission upon which, under the bond, appellant might claim a forfeiture, can be available except as they have been expressly pleaded. The plaintiff is not required, in the first instance, to prove the truth of all the statements contained in his application, nor to negative all possible grounds of forfeiture. It is for the defendant to point out such of these as it elects to depend upon for defense. May v. Insurance Co., 25 Wis. 291, 3 Am. Rep. 76;Redman v. Ins. Co., 49 Wis. 431, 4 N. W. 591;Benedix v. Ins. Co., 78 Wis. 77, 47 N. W. 176;Johnston v. Ins. Co., 94 Wis. 119, 68 N. W. 868;Chambers v. Ins. Co., 64 Minn. 495, 67 N. W. 367, 58 Am. St. Rep. 549;Bank v. Ins. Co., 128 N. C. 366, 38 S. E. 908, 83 Am. St. Rep. 682.

A careful examination of the evidence discloses some which the jury might have deemed credible and sufficient to support their findings upon the first, second, fourth, fifth, and seventh issues mentioned in the statement of facts. True, as to several of these, apparently inconsistent statements were made by the plaintiff, but such inconsistencies were for the jury to weigh and resolve, and in...