National Sur. Co. v. Williams
Decision Date | 08 December 1917 |
Citation | 77 So. 212,74 Fla. 446 |
Parties | NATIONAL SURETY CO. et al. v. WILLIAMS. |
Court | Florida Supreme Court |
Error to Circuit Court, Wakulla County; E. C. Love, Judge.
Action by Alexander H. Williams, as receiver of the Sopchoppy State Bank against the National Surety Company and another. Judgment for plaintiff, motion for new trial denied, and defendant named brings error. Judgment affirmed, if remittitur be entered; otherwise, reversed.
Syllabus by the Court
An exhibit may by apt words be made a part of a declaration ex contractu or ex delicto, and where both parties, as well as the court below, have treated such an exhibit as a part of the declaration which may be reached by demurrer, this court will follow the example of the parties and the trial court and likewise so regard it when the case comes here on writ of error.
When properly tested by demurrer or other appropriate procedure ambiguities in a pleading should be construed against the part in whose interest the ambiguous language is used; yet a court may not be held in error for overruling a demurrer to an ambiguous pleading when such pleading does not put the opposite party to a disadvantage, and when under the allegations or averments of the pleading, a cause of action or a defense may fairly be shown by proper evidence.
Stockholders of a corporation may by appropriate action ratify by-laws adopted by the promoters of such corporation before letters patent were issued and delivered to it.
Prior to the adoption of chapter 6465, Acts of 1913, Laws of Florida (Comp. Laws 1914, ss 1717a, 1717b), provisions and stipulations contained in valid contracts limiting the time within which suits could be brought upon such contracts were valid and enforceable.
A bond made by a surety company agreeing to reimburse an employer for any pecuniary loss sustained 'by any act of fraud and dishonesty, including larceny or embezzlement, forgery and misappropriation of funds,' committed by a designated employé, is in effect a 'contract of insurance' to which the rules of construction governing ordinary contracts of insurance are applicable.
The rule for the construction and interpretation of insurance contracts is that the policy must be liberally construed in favor of the insured so as not to defeat, without a plain necessity, his claim to the indemnity, which, in making the insurance, it was his object to secure.
A bond made by a surety company agreeing to indemnify a bank against pecuniary loss on account of any fraud or dishonesty of its cashier, if susceptible of two constructions, one favorable to the bank, and the other favorable to the surety company will be given the former construction when such bond was drawn by the attorneys or representatives of the surety company.
The bond of a surety company agreeing to indemnify an employer against the default of an employé is to be most strongly construed against the surety.
The bond in this case provided that upon 'becoming aware of any act which may be made the basis of a claim' under such bond 'the employer shall give immediate notice thereof to the surety at its home office' by telegraph and by registered letter, and within 90 days after the date of such notice shall file with the surety an 'itemized claim' under said bond. It further provided that no action to recover from the surety any claim under said bond should be brought 'unless commenced within a period of 12 months after the date the employer shall have given notice of claim.'
Held applying the foregoing rule of construction, that suit may be maintained in such a case when commenced within a period of 12 months after the date upon which the employer has filed with the surety his 'itemized claim,' and that such action is not barred because not commenced within a period of 12 months after the date upon which the employer gave notice that he had become aware 'of any act which may be made the basis of a claim' under such bond.
A misappropriation of funds does not necessarily mean a misappropriation of actual cash, because 'funds' is a much more comprehensive term, and may include other assets or property.
When a cashier of a bank puts his note, which is of no value, in such bank, and issues a certificate of deposit of the bank in a like amount to another in payment to him of the purchase price of property which the cashier is purchasing for himself, the transaction is in legal effect the same as if such cashier had taken the money of the bank and used it in the purchase of such property.
Where it is proven that a cashier of a bank has 'loaned' to himself, without authority, excessive amounts of the bank's funds, without taking security therefor, and that his bills receivable are considerably less in their aggregate amount than his bills receivable account carried on the books of the bank, it cannot be said that it has not been proven that he has misappropriated the funds of the bank, and the fact that he placed his worthless notes in the bank for the amount of the funds used or taken by him does not affect the substance of the transaction, nor change its real character.
In order that liability may attach on a bond conditioned to insure an employer against 'fraud and dishonesty including larceny or embezzlement, forgery, and misappropriation of funds, by an employé, it is not necessary for the employer to introduce such evidence as would be necessary to convict the employé of the crime of larceny or embezzlement as defined by the laws of this state.
Where separable amounts are erroneously included in a judgment, a remittitur of the amounts so erroneously included may be permitted in lieu of a new trial.
COUNSEL Fred T. Myers, of Tallahassee, for plaintiff in error.
Francis B. Winthrop and W. J. Oven, both of Tallahassee, for defendant in error.
This action was brought by the defendant in error against the plaintiff in error on a bond given by Alonzo D. Wilder, as principal, to the Sopchoppy State Bank, upon which the National Surety Company, as surety, agreed to reimburse said bank within three months after proof of loss, for any pecuniary loss sustained by it because of the fraud and dishonesty, including larceny or embezzlement, forgery and misappropriation of funds of the said Wilder while in the employ of said bank, during the term commencing on the 1st day of April, 1912, at 12 o'clock noon, and ending on the 1st day of April, 1913, at 12 o'clock noon.
The declaration consists of several common counts in assumpsit, and a special count upon the bond. The special count with exhibit B attached thereto and by reference made a part thereof, omitting formal parts, is as follows:
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