Henderson v. United States Fidelity & Guaranty Co.
| Decision Date | 12 October 1927 |
| Docket Number | (No. 812-4838.) |
| Citation | 298 S.W. 404 |
| Parties | HENDERSON et al. v. UNITED STATES FIDELITY & GUARANTY CO. |
| Court | Texas Supreme Court |
Action by W. C. Henderson and others against the United States Fidelity & Guaranty Company. A judgment for plaintiffs was reversed, and judgment rendered for defendant by the Court of Civil Appeals (293 S. W. 339), and plaintiffs bring error. Reversed, and judgment of the district court affirmed.
Briggs & Davis, of Gilmer, for plaintiffs in error.
Seay, Seay, Malone & Lipscomb, of Dallas, for defendant in error.
The opinion of the Court of Civil Appeals in this case is to be found in 293 S. W. 339. On June 7, 1926, the Security State Bank of Ore City, under that name or another which it succeeded, was, and for three years had been, paying premiums on a policy of insurance executed and delivered by the defendant in error, by the terms of which it was insured against loss by robbery and burglary. Sometime previous to the date above mentioned, the defendant in error had caused to be posted within the bank building a placard bearing the following words and figures:
Between 2 and 3 o'clock on the evening of June 7, 1926, Harry Blasingame drove up in front of the aforesaid bank building in a car, and, leaving the engine running, entered the bank and compelled a young woman, the assistant cashier, to deliver to him money amounting to the sum of $2,367.10. Blasingame then left the building, entered his car, and rapidly drove away. About the time he was leaving an alarm was given by some person on the outside, as well as by the assistant cashier and her aunt, who happened to be present at the time, and this alarm reached the ears of the plaintiffs in error, one of whom was the cashier and two of whom were directors of the bank. These people immediately entered cars and followed Blasingame for a distance of about eight miles, when the latter left his car and entered the adjoining woods. It was then agreed among the parties that the two directors should attempt to head off Blasingame by going another road while the cashier was to proceed in another direction. The directors of the bank discovered Blasingame as he was crossing the road they were traveling, arrested him, and started back to town with him, when they met the deputy sheriff, to whom they delivered him; the entire party returning to town within 40 minutes after the money had been taken. The cashier, in the meantime, had returned to town and was engaged in trying to secure the services of some dogs by telephonic communication when the party arrived. When Blasingame was arrested only two pennies were found on his person, the remainder of the money having been secreted in the woods, where it was afterwards found and returned to the bank. The plaintiffs in error having demanded of the defendant in error payment of the reward offered, and this demand having been refused, suit was instituted therefor, the trial thereof before the court without the intervention of the jury, resulting in a judgment for the plaintiffs in error, the amount being equally divided between the three. Upon appeal by the defendant in error to the Court of Civil Appeals at Texarkana, the judgment of the district court was reversed and judgment rendered that the plaintiffs in error take nothing. The case has reached this section of the commission in the usual way through the granting of the application for a writ of error by the Supreme Court.
The defendant in error, in its answer, alleged it was not liable to the plaintiffs in error because, as alleged by it, it appears from the testimony that plaintiffs in error were not officers or employees of the bank within meaning of the offer; Blasingame was not captured while "undertaking" to rob the bank, but after the robbery thereof had been fully accomplished; that appellees were not induced by relying upon the reward to undertake to capture Blasingame; and that the capture of Blasingame was unlawful.
The testimony shows without any substantial conflict that neither the cashier nor the directors were present when the assistant cashier delivered the money to Blasingame, being in front of the drug store about 300 feet from the bank building looking at a land map. But when the alarm was given all three proceeded to enter automobiles and to follow Blasingame with a view of capturing him and recovering the money which he had taken from the bank. They did capture Blasingame, but, while the money was afterwards found and returned, they did not find any money on his person except two pennies, and these pennies were the only money recovered. The record does not disclose affirmatively that the pennies were part of the money taken, but, in view of the testimony on the subject, it may be assumed that they were. The Court of Civil Appeals correctly held, in our opinion, that the plaintiffs in error were officers of the bank within the meaning of the offer, and that they did have the offer of reward in mind when they captured Blasingame, but, in our opinion, erroneously further held that Blasingame was not captured while he was "undertaking" to rob the bank, but after the robbery thereof had been fully accomplished, and, further, that the capture of Blasingame was unlawful.
A "reward" is a recompense or premium offered by one having the authority to make the offer in return for special services to be performed, either to a particular person or class, or to any and all persons complying with the terms. Zwolanek v. Baker Mfg. Co., 150 Wis. 517, 137 N. W. 769, 44 L. R. A. (N. S.) 1214, Ann. Cas. 1914A, 793; 4 Words and Phrases, Second Series, p. 384. The offer of the "reward" and the acceptance of the offer by the performance of the services involved in the offer constitutes a contract which is not different from other contracts in respect to the rules of construction of written instruments evidencing a contract. In such cases, regard should not be had to the mere letter to the exclusion of the spirit. Haskell v. Davidson, 91 Me. 488, 40 A. 330, 42 L. R. A. 155, 64 Am. St. Rep. 254.
A fundamental rule in construing such contracts is to ascertain therefrom and to give effect to the intention of the parties thereto. According to this rule of construction, and in view of the object sought by the defendant in error in making the offer, it was its purpose, by furnishing this inducement to the officers and employees of the bank, to materially prevent a loss to the bank under such circumstances as, according to the terms of the policy, would compel the defendant in error to compensate the bank for any loss occurring under the conditions imposed by the terms of the insurance policy. The defendant in error has asserted here that the word "undertaking," as used in the offer, is synonymous in meaning with the word "attempting," and that the word "undertake" means the same as the word "attempt." It quotes from an opinion of the Supreme Court of the United States in the case of United States v. John B. Quincy, 6 Pet. 445, 8 L. Ed. 458, this language:
"To attempt to do an act does not, either in law or in common parlance, imply a completion of the act, or any definite progress towards it."
It also quotes article 1402 of the Penal Code 1925, defining the offense of attempting to commit burglary, which is in this language:
"An `attempt' is an endeavor to accomplish the crime of burglary carried...
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