Krey Packing Co. v. Employers' Liability Assur. Corp.

• Citation: 127 S.W.2d 780
• Decision Date: 02 May 1939
• Docket Number: No. 24930.,24930.
• Parties: KREY PACKING CO. v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND.
• Court: Court of Appeal of Missouri (US)

127 S.W.2d 780

KREY PACKING CO. v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND.

No. 24930.

St. Louis Court of Appeals. Missouri.

May 2, 1939.

As Modified on Denial of Rehearing May 16, 1939.

Appeal from St. Louis Circuit Court; Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Action by the Krey Packing Company against the Employers' Liability Assurance Corporation, Limited, of London, England, on a fidelity bond. From a judgment for plaintiff, defendant appeals.

Affirmed.

Moser, Marsalek & Dearing, of St. Louis, for appellant.

Boyle & Priest and Erwin F. Vetter, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action on a fidelity bond. The trial was had on an agreed statement of facts, as follows:

"The defendant The Employers' Liability Assurance Corporation, Ltd., of London. England, executed and delivered to plaintiff its certain bond numbered F.-St.L. 8052 (Home office No. 70767), by the terms of which defendant bound itself to pay to plaintiff the amount of any pecuniary loss, not to exceed the sum of one thousand dollars, which Vincent A. Gones, as employe of plaintiff named in schedule attached to said bond, might cause plaintiff, through any act of fraud, dishonesty, forgery, theft, larceny, embezzlement, misappropriation, wrongful abstraction or willful misapplication committed during the one-year term commencing on the 2nd day of March, 1934, at noon, and ending on the 2nd day of March, 1935, at noon.

"The defendant Employers' Liability Assurance Corporation, Ltd., of London, England, on the 2nd day of March, 1935, in consideration of the sum of nine hundred forty dollars executed its fidelity continuation certificate numbered 46056, continuing said fidelity bond in force from noon of the 2nd day of March, 1935, to noon of the 2nd day of March, 1936, subject to all of the terms and conditions in said bond numbered F. St. L. 8052, and said continuation certificate which is made a part hereof, and a part of the pleadings filed herein.

"The said Vincent A. Gones fraudulently and dishonestly embezzled the sum of two thousand five hundred thirty dollars from the Krey Packing Company, the plaintiff herein, during the period from March 2, 1934, to March 2, 1935, and the plaintiff Krey Packing Company suffered a loss by reason of such embezzlement in the amount of two thousand five hundred thirty dollars during said period.

"The said Vincent A. Gones fraudulently and dishonestly embezzled the sum of seven hundred fifty dollars from the Krey Packing Company, the plaintiff herein, during the period from March 2, 1935, to June 5, 1935, and the plaintiff Krey Packing Company suffered a loss by reason of such embezzlement in the amount of seven hundred fifty dollars during said period.

"The defendant has tendered to the plaintiff the sum of one thousand dollars, and for that purpose has deposited in the registry of this court the sum of one thousand dollars, in full discharge and satisfaction of defendant's liability to plaintiff under said bond and continuation certificate."

The surety bond, issued on March 2, 1935, provides as follows:

                        "Bond No. F. St. L. 8052
                "Amount, $144,000.00   Premium, $1067.50
                

"The Employers' Liability Assurance Corporation, Limited (hereinafter called Surety), in consideration of an agreed premium, binds itself to pay to Krey Packing Company (hereinafter called Employer), the amount of any pecuniary loss which any Employe named in the schedule hereto attached or added thereto as hereinafter provided, may, while in any position and at any location in the service of the Employer, alone or in collusion with others, cause to the Employer, not exceeding, however, the amount set opposite the name of such Employe, through any act of fraud, dishonesty, forgery, theft, larceny, embezzlement, misappropriation, wrongful abstraction or willful misapplication committed during the one year term commencing on the 2nd day of March, 1934, at noon, or if added by acceptance notice, at noon of the effective date of such addition, and while this bond is in force as to such Employe, and discovered before the expiration of twenty-four months from the termination of this bond as an entirety or as to such Employe, whichever shall first happen."

The schedule referred to in the bond contains the name of Vincent A. Gones as an employe in the position of clerk and cashier, with $1,000 set opposite the name. It also contains the names of numerous other employes in various positions with various amounts set opposite their names according to the positions in which they were employed. The amounts set opposite the names range from $1,000 to $1,250, $5,000, $10,000, and $25,000.

The so-called continuation certificate, issued on March 2, 1935, is as follows:

                  "Fidelity Continuation Certificate No
                               46056
                "Amount $127,000 Premium $940.00 Bond
                   No. F-70767
                

"In consideration of the sum of Nine Hundred Forty Dollars Bond No. F-70767 issued to Krey Packing Company in the sum of One Hundred Twenty Seven Thousand Dollars on the fidelity of Officers and Employes is hereby continued in force from noon of the 2nd day of March, 1935, to noon of the 2nd day of March, 1936, subject to all the terms and conditions in the aforesaid Bond.

"Provided, however, that the aggregate liability of the Corporation from the effective date of said Bond No. F-70767 to the date of the expiration of this Certificate, for or on account of any act or acts of the employe covered hereunder shall not exceed Nine Hundred Forty Dollars."

The trial was had before the court, without a jury, and resulted in a judgment for plaintiff for $1,750 as principal and $179 as interest, aggregating $1,929. Defendant appeals.

Defendant insists here that under the original bond and continuation certificate, which constitute the contract sued on, plaintiff was entitled to recover only $1,000, which is the amount covering on Vincent A. Gones under the original bond. Defendant in support of this insistence urges in argument that the continuation...