Lyndonville Sav. Bank & Trust Co. v. Peerless Ins. Co.
| Decision Date | 03 October 1967 |
| Docket Number | No. 204,204 |
| Citation | 126 Vt. 436,234 A.2d 340 |
| Parties | LYNDONVILLE SAVINGS BANK AND TRUST CO. v. PEERLESS INSURANCE COMPANY. |
| Court | Vermont Supreme Court |
Kyle T. Brown and Arthur L. Graves, St. Johnsbury, for plaintiff.
McKee & Clewley, Montpelier, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This action was brought by the plaintiff bank against the defendant insurance company upon a standard form of 'Banker's Blanket Bond' issued by the defendant to the plaintiff. The clause of the bond upon which recovery is sought is loss of property suffered by the bank by means of 'robbery, burglary, common-law of statutory larceny, theft, false pretenses, holdup' and the like.
The bank complains that while the policy was in full force and effect that one John T. Dowd by means of 'larceny and false pretenses' obtained the sum of $4,000.00 from the bank. The undisputed evidence is that the $4,000.00 was given by the bank to Dowd's agent, in return for a check for that amount, dated Nov. 8, 1963, drawn on the Society National Bank of Cleveland, Ohio, and signed by Dowd. Payment of the said check was refused by the Society National Bank by reason of a stop-payment order issued by Dowd. Dowd filed a petition in bankruptcy in the United States District Court for the northern District of New York on Nov. 25, 1963, and it is undisputed that, except for a 30 per cent. payment on the face amount of that check from the bankruptcy court, the plaintiff has never received the face amount of the check.
At the close of the evidence in the cause below, the motion of the plaintiff for a verdict directed in its favor was granted by the lower court. The appeal here was taken by the defendant insurance company from this verdict and the resulting judgment. The only question presented here is whether the lower court should have granted the plaintiff's motion for a directed verdict.
As conceded by the brief of the plaintiff, the only issue presented by the pleadings is whether the plaintiff's loss due to the cashing of a bad check was induced by false pretenses. Extensive evidence was presented by the plaintiff on the financial transactions of John T. Dowd, apparently engaged in the business of coin and currency brokerage, and on the fluctuations of Dowd's bank account at the Society National Bank, particularly as to its condition on the date when Dowd drew the check here in question.
Recovery by the bank is sought from the insurance company on that clause in the policy which provides for reimbursement for loss suffered by reason of 'false pretenses.' Although the action here is a civil one, it charges John T. Dowd with the performance of a criminal act.
Under 13 VSA Sec. 2002: 'A person who designedly by false pretenses or by privy of false token and with intent to defraud, obtains from another person money or other property, or a release or discharge of a debt or obligation, or the signature of a person to a written instrument, the false making whereof would be punishable as a forgery * * *.' is guilty of a felony. The burden was on the plaintiff bank to prove Dowd's commission of the criminal act. The measure of proof required in this jurisdiction to establish a criminal charge in a civil proceeding is by a preponderance of the testimony, with the presumption of innocence favoring the party accused. Livanovitch v. Livanovitch, 99 Vt. 327, 329, 131 A. 799; Lindley v. Lindley, 68 Vt. 421, 35 A. 349. 'The presumption of innocence in criminal causes shall attend the accused until the jury renders a verdict of guilty, and the court shall charge the jury accordingly * * *' 13 VSA Sec. 6502.
The statute makes clear that an intent to defraud is one of the essential elements which it was necessary for the plaintiff to establish by a preponderance of the evidence to establish that John T. Dowd was guilty of false pretenses in the civil case before us.
The crux of the charge of false pretenses against Dowd in this instance is whether or not, on Nov. 8, 1963, when Dowd's check was cashed at the plaintiff bank, Dowd had the fraudulent intent to pass a check for which he had insufficient funds on deposit to meet the check.
While all...
To continue reading
Request your trial
-
In re Mayo
...to prove civil fraud. See, Re Delligan's Estate, 111 Vt. 227, 13 A.2d 282 (1940). But see, Lyndonville Savings Bank and Trust Co. v. Peerless Insurance Co., 126 Vt. 436, 439, 234 A.2d 340 (1967) (In this false pretense case the court held the measure of proof required in Vermont to establis......
-
In re Smith, 97-417.
...v. Department of Employment & Training, 152 Vt. 446, 448-49, 566 A.2d 988, 990 (1989); Lyndonville Sav. Bank & Trust Co. v. Peerless Ins. Co., 126 Vt. 436, 439, 234 A.2d 340, 342 (1967). Thus, we turn to the more substantial question of whether to uphold the Board's use of the preponderance......
-
Board of Ed. of St. Charles Community Unit School Dist. No. 303 v. Adelman
...237 A.2d 252; Corning Glass Works v. Seaboard Surety Co. (1973), 112 R.I. 241, 308 A.2d 813; Lyndonville Savings Bank & Trust Co. v. Peerless Insurance Co. (1967), 126 Vt. 436, 234 A.2d 340; but cf., Jonas v. Northeastern Mutual Fire Insurance Co. (1969), 44 Wis.2d 347, 171 N.W.2d 185 (evid......
-
Wheeler v. Central Vermont Medical Center, Inc., 88-050
...preponderance-of-evidence standard that governs most issues in civil litigation, see, e.g., Lyndonville Savings Bank & Trust Co. v. Peerless Insurance Co., 126 Vt. 436, 441, 234 A.2d 340, 343 (1967); Neverett v. Towne, 123 Vt. 45, 48, 179 A.2d 583, 585 (1962), is in error or what authority ......