Maryland Cas. Co. v. Schroeder

• Decision Date: 17 September 1969
• Docket Number: No. 6019,6019
• Citation: 446 S.W.2d 117
• Parties: MARYLAND CASUALTY COMPANY, Appellant, v. Edwin H. SCHROEDER and Barbara L. Schroeder, Appellees. . El Paso
• Court: Texas Court of Appeals

Page 117

446 S.W.2d 117

MARYLAND CASUALTY COMPANY, Appellant, v. Edwin H. SCHROEDER and Barbara L. Schroeder, Appellees.

No. 6019.

Court of Civil Appeals of Texas.

El Paso.

Sept. 17, 1969.

Rehearing Denied Oct. 22, 1969.

Owen, Brewster & Steinberger, Jack L. Brewster, El Paso, for appellant.

Peticolas, Luscombe & Stephens, John B. Luscombe, Jr., Wayne Windle, El Paso, for appellees.

OPINION

PRESLAR, Justice.

Maryland Casualty Company, as plaintiff, brought this suit against Edwin Schroeder and Barbara Schroeder seeking to recover the sum of $13,161.65 plus exemplary damages against both defendants, jointly and severally, and seeking to impress an equitable lien upon certain property of the defendants. Appellant's cause of action was based on the fact of its having issued a blanket bond to El Paso Federal Savings & Loan Association insuring such Association against embezzlement, and that Edwin Schroeder, as an employee of such Association, had embezzled some $17,912, the amount sought to be recovered, taking into account restitution of a certain amount, but also including costs and expense of an audit. Following trial by jury, the court disregarded certain findings of the jury and entered judgment against Edwin Schroeder for $11,011.79, and entered a take-nothing judgment as to the defendant, Barbara Schroeder; and it is from such judgment, and the overruling of motion for new trial, that Maryland Casualty Company appeals. We are of the opinion that the case must be remanded for another trial because of the error of the court in the submission of the damage issue, and for the further reason that the court should not have disregarded certain answers of the jury.

Over a period of some 21 months and while an employee of El Paso Federal Savings & Loan Association, Edwin Schroeder stole or embezzled some $17,000, the exact amount being in dispute. It is undisputed that $7,901.50 was paid by defendants as restitution on the amount taken. At the time of the acts of embezzlement, the defendants were husband and wife, but following such acts and prior to the trial of this case, they were divorced. Speaking of the parties as they appeared at the trial level, the plaintiff, Maryland Casualty Company, sought recovery of the amounts of money stolen as reduced by the restitution, plus its expenses of an accounting and auditing which, under its bond, was required. Maryland Casualty paid to El Paso Federal Savings & Loan Association, upon proper proof of loss, the sum of $13,161.65. This included some $3,150, which was the cost of the audit.

In submitting what we would call the damage issue, the same being Issue No. 1, the court inquired: 'From a preponderance of the evidence, what amount of money do you find Edwin Schroeder stole from El Paso Federal Savings & Loan Association? Answer in dollars and cents.' The issue was necessary because there were discrepancies in the evidence as to the amount of money taken by Edwin Schroeder. But the issue standing alone does not present the full measure of damages sought to be recovered by the plaintiff, in that it left out the expense of auditing, as noted, and therein lies the error of the court. Plaintiff objected to the submission of the issue on the ground that it did not give it the full relief sought, in that it left out these other elements of damages. Plaintiff submitted, and the court refused, a requested special issue as follows: 'What sum of money, if any, if paid in cash, do you find from a preponderance of the evidence will fairly and just compensate the plaintiff for its damages, if any? Answer in dollars and cents, if any, or 'none'.' Appellees urge that the requested issue is not substantially correct within the meaning of Rule 279, Texas Rules of Civil Procedure. That rule provides in substance that the failure to submit an issue shall not be reversible error unless the issue is tendered in substantially correct form by the party relying on such issue. It is stated in Call of Houston, Inc. V. Mulvey, Tex.Civ.App ., 343 S.W.2d 522:

'* * * Such requirement does not mean that it must be absolutely correct nor does it mean that one that is merely sufficient to call the matter to the attention of the trial court will suffice, but rather it means one that in substance and in the main is correct and that is not affirmatively incorrect. Modica v. Howard, Tex.Civ.App.1942, 161 S.W.2d 1093'.

Plaintiff having pleaded and offered evidence as to its loss or damage occasioned by the audit, and its necessity, it was entitled to an issue which included that element of its case. In its objections to the charge, plaintiff specifically pointed out this deficiency in the damage issue, and under the circumstances we are of the opinion that the issue requested met the requirements of the Rule as to being in substantially correct form. In the event the evidence is the same on another trial, it will be necessary to separately establish the amount of money taken by Edwin Schroeder if the plaintiff is to trace such stolen funds into property of the defendants.

We are also of the opinion that the court committed reversible error in disregarding the jury's answers to Special Issues Nos. 4, 5 and 6. By their answers to Questions Nos. 4, 5 and 6 the jury found that money stolen from El Paso Federal Savings & Loan went into the purchase of a home at 3309 Poquita Court and to the purchase of a Chevrolet station wagon and into the payment of premiums on insurance policies on the lives of Mr. and Mrs. Schroeder. On motion of the appellee-defendants, the court disregarded the jury's answers to these issues and, accordingly, its judgment did not provide the equitable lien sought by the plaintiff on the properties . To sustain the action of the trial court in disregarding the issues or granting a judgment non obstante veredicto, it must be determined that there was no evidence having probative force upon which the jury could have made the findings relied upon. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194. And upon appeal from a judgment non obstante veredicto, it is the duty of the appellate court to determine if there...