Lemay Ferry Bank v. New Amsterdam Cas. Co.

• Decision Date: 03 April 1941
• Docket Number: 36621
• Citation: 149 S.W.2d 328,347 Mo. 793
• Parties: Lemay Ferry Bank, a Corporation, Respondent, v. New Amsterdam Casualty Company, a Corporation, et al., Defendants, New Amsterdam Casualty Company, a Corporation, Appellant
• Court: Missouri Supreme Court

149 S.W.2d 328

347 Mo. 793

Lemay Ferry Bank, a Corporation, Respondent, v. New Amsterdam Casualty Company, a Corporation, et al., Defendants, New Amsterdam Casualty Company, a Corporation, Appellant

No. 36621

Supreme Court of Missouri

April 3, 1941

Appeal from Circuit Court of St. Louis County; Hon. John J Wolfe, Judge.

Affirmed upon remittitur of $ 786.30 for $ 11,695.97.

Wayne Ely and Harold R. Small for New Amsterdam Casualty Company.

(1) The court erred in refusing to give New Amsterdam Casualty Company's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case, and again at the close of the whole case. Plaintiff bank failed to furnish the New Amsterdam Casualty Company with a statement of its claim, "in writing, showing the items and dates of the losses," as it was required by the bond to furnish. The undisputed evidence shows it could have furnished such written information, and its failure so to do precludes recovery. State ex rel. Order of United Commercial Travelers of America v. Shain, 98 S.W.2d 600; Soukop v. Employers' Liab. Assur. Corp. Ltd London, 108 S.W.2d 93; Coburn v. Metropolitan Life Ins. Co., 91 S.W.2d 160; Smith v. Mutual Ben. Health & Acc. Assn., 104 S.W.2d 754; Travelers' Ins Co. of Hartford v. Scott, 218 S.W. 56; Phoenix Cotton Oil Co. v. Royal Indemnity Co., 205 S.W. 130; Anderson v. Metropolitan Life Ins. Co., 96 S.W.2d 634; Crotty v. Continental Cas. Co., 146 S.W. 836; Natl. Paper Box Co. v. Aetna Life Ins. Co., 156 S.W. 743; Home Building & Savs. Assn. v. New Amsterdam Cas. Co., 45 F.2d 989; Callen v. Mass. Protective Assn., 24 F.2d 694; New Amsterdam Casualty Co. v. Farmers' etc., Union, 2 F.2d 214; New Amsterdam Casualty Co. v. Fire Ins. Co., 4 F.2d 203; Commercial Casualty Co. v. Fruin-Colnon Contracting Co., 32 F.2d 432; Clements v. Preferred Accident Co., 41 F.2d 472; Fidelity & Deposit Co. of Maryland v. U. S. F. & G. Co., 64 P.2d 672; U. S. F. & G. Co. v. Gray, 106 Okla. 222, 233 P. 732; St. Louis Architectural Iron Co. v. New Amsterdam Cas. Co., 40 F.2d 344; Natl. Paper Box Co. v. Ins. Co., 170 Mo.App. 361, 156 S.W. 740; U. S. F. & G. Co. v. Carmichael, 195 Mo.App. 93, 190 S.W. 648; Imperial Fire Ins. Co. v. Coos County, 151 U.S. 462; Harris v. North British & Mercantile Ins. Co., 30 F.2d 94; Thompson v. U. S. F. & G. Co., 3 F.Supp. 756; Clements v. Preferred Accident Ins. Co., 41 F.2d 470, 76 A. L. R. 17. (2) The court erred in giving plaintiff's Instruction 1. (a) This instruction permitted the jury to find that plaintiff had no knowledge or means of knowledge of the items and dates of the divers sums of money taken by Becker, and was not able to furnish New Amsterdam with a claim in writing showing the items and dates of such losses, and permitted the jury to find that the plaintiff had complied with the terms and conditions of the contract in so far as it was possible for it to do so. The undisputed evidence showed that the plaintiff did have means of knowledge of the items and dates of the losses, and that it could have furnished a written claim showing the items and dates of the losses. The instruction was, therefore, broader than the evidence. Rucker v. Alton Ry. Co., 123 S.W.2d 24; Gandy v. Railroad, 44 S.W.2d 634. (3) The court erred in giving Instruction 3. (a) This instruction permitted the jury to excuse plaintiff's failure to furnish the New Amsterdam Casualty Company with a claim in writing showing the items and dates of its losses, and permitted them to find that it was impossible for plaintiff to have furnished such itemized claim. This was error for the reasons stated under point (1). (b) Instruction No. 3 was also broader than the evidence. Rucker v. Alton Ry. Co., 123 S.W.2d 24; Gandy v. Railroad, 44 S.W.2d 634. (4) The court erred in giving Instruction 6. This instruction submitted the question of vexatious delay, and permitted the jury to find that New Amsterdam Casualty Company had vexatiously and in bad faith, and without reasonable cause, refused to pay the plaintiff's claim. There was no evidence that New Amsterdam Casualty Company's refusal to pay the claim was vexatious or in bad faith, or without reasonable cause, and it was error to give the instruction. Aufrichtig v. Columbian Natl. Life Ins. Co., 298 Mo. 16, 249 S.W. 917; Non-Royalty Shoe Co. v. Phoenix Assur. Co., 277 Mo. 423, 210 S.W. 43; State ex rel. v. Trimble, 322 Mo. 1238, 18 S.W.2d 22; Block v. U. S. F. & G. Co., 316 Mo. 303, 290 S.W. 440; Kusnetzky v. Security Ins. Co., 313 Mo. 159; Trantham v. Home Ins. Co., 137 S.W.2d 690; Fletcher v. Metropolitan Life Ins. Co., 137 S.W.2d 621; De Valpine v. New York Life Ins. Co., 131 S.W.2d 349; Mound City Roofing Tile Co. v. Springfield Fire & Marine Ins. Co., 218 Mo.App. 409, 277 S.W. 352.

Fred J. Hoffmeister and Hay & Flanagan for respondent.

(1) Provision in the bond of appellant New Amsterdam Casualty Company that claim, if any, be submitted by the employer in writing showing the items and the dates of the losses, is not a condition precedent to liability, and, therefore, it was not error for the court to submit the question of liability to the jury upon a finding that it was impossible for plaintiff to comply with such requirements. Dezell v. Fidelity & Guar. Co., 176 Mo. 253, 75 S.W. 1102; Walker v. American Automobile Ins. Co., 229 Mo.App. 1202, 70 S.W.2d 82; St. Paul & Kansas City Short Line Railroad Co. v. United States Fid. & Guar. Co., 231 Mo.App. 613, 105 S.W.2d 24; Jackson v. Security Ben. Assn., 139 S.W.2d 1018; Hayes v. Continental Cas. Co., 98 Mo.App. 416, 72 S.W. 135; Roseberry v. Amer. Benevolent Assn., 142 Mo.App. 559, 121 S.W. 785; De Land & Sons v. Aetna Ins. Co., 68 Mo.App. 277; Peoples Bank of Queen City v. Aetna Casualty & Surety Co., 225 Mo.App. 1113, 40 S.W.2d 542. (2) Since the evidence sufficiently established that between March 22, 1930, and March 9, 1931, the dates between which the bond of appellant New Amsterdam Casualty Company was in force, plaintiff bank suffered a loss of $ 8009.54, due to the peculations of its employee Herman C. Becker, and the contract did not provide that failure to give itemized notice of losses would release insurer's liability on the bond, it was not error for the court to overrule defendant's demurrer to the evidence. Dezell v. Fidelity & Guar. Co., 176 Mo. 253, 75 S.W. 1102; St. Paul & Kansas City Short Line Railroad Co. v. United States Fid. & Guaranty Co., 231 Mo.App. 613, 105 S.W.2d 24; Walker v. Amer. Automobile Ins. Co., 229 Mo.App. 1202, 70 S.W.2d 82. (3) Since it was alleged by the pleadings and shown by the evidence that it would not have been possible for plaintiff bank to furnish an itemized statement of loss, the instruction excusing failure to furnish such statement upon finding that it would not have been possible to do so was proper. (4) Since the evidence shows that appellant, following presentation of plaintiff's claim, did not take any action, that appellant was familiar with this method of embezzlement and appellant raised no unsettled question of law upon the merits and offered no testimony, it was not error for the court to submit to the jury the issue of vexatious delay. Bank of Oak Ridge v. Duncan, 328 Mo. 182, 40 S.W.2d 660.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondent. Lemay Ferry Bank, obtained a judgment in the sum of $ 12,482.27, in the Circuit Court of St. Louis County, against appellant, New Amsterdam Casualty Company, as surety, and Herman C. Becker, principal for an alleged breach of an indemnity bond. From the judgment the casualty company appealed.

Plaintiff Lemay Ferry Bank, had in its employ as assistant cashier, the defendant Herman C. Becker. The bond sued on covered a period from March 22, 1930, to March 9, 1931. On the latter date a blanket bond covering all employees of the bank was issued by the Indemnity Company of North America. Mr. Becker, as assistant cashier, had charge of the ledger accounts from the letter "L" to the letter "Z." On July 14, 1934, an employee of the bank informed the president thereof that she saw the defendant Becker hide some papers under his desk. It was then after banking hours. The president made a search and found a number of ledger sheets which should have been in the ledger. An examination disclosed that without these sheets no shortage appeared, but with them added to the ledger there was a shortage of over $ 20,000. From the evidence it appears that the amount of the shortage was concealed by Becker withdrawing from the ledger of the demand deposits a sufficient number of sheets showing deposits which equaled the amount of the shortage. The peculations extended over the period from 1929 to 1934, during which time the bank was regularly examined by bank examiners and no shortage discovered. Immediately upon the discovery the indemnity company was notified of the shortage. This company was also given the names of the customers whose ledger sheets were found missing from the ledger on July 14, 1934, and the amount of the deposits these customers had on deposit. Appellant was also notified that irregularities had been discovered in the records of Mr. Becker and that the indemnity company had been notified. In response to that notice two representatives of the appellant company appeared at the bank. In our original opinion we briefly related what took place when the representatives were at the bank. Appellant found fault with our statement so we have decided to quote from the record. Mr. Boenecke, president of the bank, testified as follows:

"I told one of the representatives just what happened and what transpired, the discovery that the sheets had been held out from the general ledger and the manner in which they were taken out. I called attention...