Maryland Cas. Co. v. First Nat. Bank of Montgomery, Ala.
| Decision Date | 12 November 1917 |
| Docket Number | 3146. |
| Citation | 246 F. 892 |
| Parties | MARYLAND CASUALTY CO. v. FIRST NAT. BANK OF MONTGOMERY, ALA. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rehearing Denied January 12, 1918.
This was an action by the First National Bank of Montgomery, Ala the defendant in error (which will be called the plaintiff) against the Maryland Casualty Company, the plaintiff in error (which will be called the defendant), based upon a bond having a rider attached thereto, and a renewal receipt, which bond, rider, and renewal receipt were issued by the defendant to the plaintiff and are in words and figures as follows, except that so much of the schedules copied as refers to employes other than Mark Blakely Campbell is omitted: Schedule Bond.
Register No. . . . .
Maryland Casualty Company, Baltimore.
1. Whereas, First National Bank, Montgomery, Alabama,
2 hereinafter called the 'Employer,' desires security on behalf of certain persons hereinafter
3 called 'Employes.'
11 Wrongful Abstraction or Wilful Misapplication on the part of any Employe
12 (while in any position in the service of the Employer and committed directly or through
13 connivance with others) named in the Schedule hereto attached, or hereafter added to said
14 Schedule by an Acceptance Notice executed by the Company.
15 Provided, that the Company's liability on behalf of any Employe shall in no event
16 exceed the amount set opposite to the name of such Employe in the said Schedule or in the said
17 Acceptance Notice.
18 Provided, further, that as to Employes named in the Schedule the Company
19 shall not be liable for any loss occurring before noon on the tenth day
20 of April, 1913, and as to Employes subsequently added to said
21 Schedule by said Acceptance Notices, the Company shall not be liable for loss occurring before
22 noon on the date stated in the Acceptance Notices, and the liability of the Company shall
23 immediately terminate as to subsequent acts of any Employe upon (a) the retirement of such
24 Employe from the service of the Employer; (b) discovery by the Employer of any default
25 hereunder by such Employe; or (c) the cancellation of this bond by the Employer or the
26 Company as to any or all of said Employes.
27 This bond is executed upon the following express conditions:
28 1. That notice of any loss covered hereunder shall be sent by telegraph and by registered
29 letter, both addressed to the Company, at its Home Office, Baltimore, Maryland, within ten (10)
30 days after the discovery of such loss; that an itemized statement of such loss shall be filed with
31 the Company by the Employer within ninety (90) days after the date of said notice of loss;
32 and, if required by the Company, the Employer shall produce for investigation all books
33 vouchers and evidence in the Employer's possession.
39 and provided no loss has been reported, the pro rata unearned portion of the premium shall be
40 returned to the Employer.
41 3. That the Employer and the Company shall share any recovery (excluding insurance
42 and reinsurance) made by either on account of any loss in the proportion that the amount of
43 the loss borne by each bears to the total amount of the loss.
44 4. That should the Employer and the Company disagree regarding the amount of any
45 claim made under this Bond, the amount may, at the election of the Employer or the Company
46 be determined by arbitrators; one to be selected by the Employer, one to be selected by the
47 Company, and a third (in the event of failure to agree upon the amount of the claim) by the
48 two so selected; the written decision of the majority of said arbitrators shall be binding and
49 conclusive as to the mount of such claim, and the total expense of such arbitration shall be
50 paid by the Company.
55 Not valid unless countersigned by an authorized official or agent of the Company.
Robt. Ferguson, Asst. Secretary.
Countersigned at Montgomery, Alabama, this 19th day of March, A.D. 1913.
Thomas, Jackson & Wilcox, Agents.
Maryland Casualty Company, Baltimore.
Rider.
To be attached to Schedule Bond No. 34455, executed on the 19th day of March, A.D. 1913, by the Maryland Casualty Company, as surety (hereinafter called Company), in favor of the First National Bank, Montgomery, Ala. (hereinafter called Employer) on behalf of its Employes for the term continuous beginning the 10th day of April, A.D. 1913.
The Company does hereby agree that claim may be made under said bond, according to the terms and conditions thereof, for any loss or losses which the Employer may, during the period between the 10th day of January, A.D. 1907, and the 10th day of April, A.D. 1913, have sustained on account of any Employe named in the schedule attached to said Schedule Bond No. 34455, provided, however, that such Employe be also named in the schedule attached to the Bond of American Bonding Company of Baltimore, of Baltimore, Maryland, dated the 28th day of December, A.D. 1906, and covered thereby on the 10th day of April, A.D. 1913, that such loss or losses shall be covered by the terms of the bond of said American Bonding Company of Baltimore; that the Company shall not be liable under its said bond for any such loss or losses unless discovered after the expiration of the time within which claim can be made under the bond of said American Bonding Company of Baltimore; and that the aggregate liability of the Company on account of any Employe shall in no event exceed the sum set opposite the name of such Employe in the schedule attached to said Schedule Bond No. 34455.
In testimony whereof, said Maryland Casualty Company has caused these presents to be signed by its President, attested by its Asst. Secretary, and its corporate seal to be hereto affixed, the 15th day of April, A.D. 1913. Maryland Casualty Company.
By Jno. T. Stone, President.
Attest:
S. M. McClellan, Asst. Secretary.
Amount, $276,500.00
Premium, $518.41.
Fidelity Section, Bonding Department.
Maryland Casualty Company, Baltimore.
Schedule of Employes covered by attached Schedule Bond No. 34455 in favor of First National Bank, Montgomery, Alabama, for the year beginning April 10, 1913, and ending January 10, 1914. (TABLE OMITTED)
Montgomery Ala., January 10, 1914.
Received of First National Bank, Montgomery, Alabama, six hundred and ninety-one and 25/100-- $691.25.
Renewal premium on Schedule Bond covering employes from January 10, 1914, to January 10, 1915. Maryland Casualty Company Bond No. 34455.
Thomas, Jackson & Wilcox, Agents.
Maryland Casualty Company.
By Geo. A. Thomas.
The action was for the recovery of the aggregate amount of $22,500 of funds of the plaintiff, which it was alleged said Campbell, while in the service of plaintiff as bookkeeper, by acts of dishonesty, appropriated to his own use. The only evidence offered in the trial was that introduced by the plaintiff. This evidence showed that, when the bond was delivered by the defendant to the plaintiff, it had the rider attached to it; that said Campbell was continuously an employe of the plaintiff as a bookkeeper from prior to January 10, 1907, to November 14, 1914; that between the 10th day of January, 1907, and the 10th day of April, 1913, he, while in such service, dishonestly appropriated to his own use money of the plaintiff amounting to more than $7,500; that between April 10, 1913, and January 10, 1914, he so misappropriated money of the plaintiff amounting to $6,900.57; and that between January 10, 1914, and November 14, 1914, he so misappropriated money of the plaintiff amounting to $6,589.92, including in the last-mentioned sum the item of $1,200, reference to which is made in the opinion. At the conclusion of the evidence the court, at the request of the plaintiff, gave the following written charge to the jury:
If the jury believe the evidence in the case, they should find a verdict for the plaintiff, and assess its damages at the sum of $20,990.49, with interest thereon from April 20, 1915, to this date.
The sum stated in this charge is the aggregate of the several amounts last above stated. The action of the court in giving the charge just set out, and also other rulings which are referred to in the opinion, are duly presented for review.
Fred S Ball, of Montgomery, Ala. (Edmund R. Beckwith, of Montgomery, Ala., on...
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