Phoenix Indem. Co. v. Union Finance Co.
| Decision Date | 24 August 1951 |
| Parties | PHOENIX INDEMNITY CO. v. UNION FINANCE CO. |
| Court | Florida Supreme Court |
Fowler, White, Gillen, Yancey & Humkey, Tampa, for appellant.
Mabry, Reaves, Carlton, Anderson, Fields & Ward, Tampa, for appellee.
Union Finance Company brought an action at law against Phoenix Indemnity Company to recover on a fidelity bond, better known as a 'small Loan Companies Blanket Bond.' The bond was given to indemnify plaintiff in an amount not exceeding $10,000 for losses sustained from January 16, 1948 to February 15, 1949, on account of dishonest or fraudulent acts of any of its employees, including the Manager of plaintiff's office at Lakeland, Florida. Section 11 is the pertinent part of the bond involved in this litigation and provides that the bond 'shall be deemed terminated as to any employee as soon as the insured shall learn of any dishonest or fraudulent acts on the part of such employee.'
The declaration alleged that while the bond was in force the manager of plaintiff's office at Lakeland, through dishonest and fraudulent acts, took and appropriated money of the plaintiff in the sum of $8,718.26, for which defendants are liable on their bond. There was also a claim by plaintiff for attorney's fees which was denied. In its eighth plea to the declaration, defendant says that on or about the first day of February, 1948, during the life of the bond, plaintiff learned that the manager of its office at Lakeland was dishonest, that he was collecting money from customers of the plaintiff and appropriating it to his own use, that by reason of this knowledge, the said bond was terminated as to said employee on or about February 1, 1948, and that defendant was not liable for losses sustained by the plaintiff by reason of said dishonest acts committed after February 1, 1948. On the issue so made, the case was tried before a jury. There was evidence to support the eighth plea. At the conclusion of the evidence defendant moved for a directed verdict in its favor. The motion was denied and the jury returned a verdict for the plaintiff in the sum of $8,165.22, for which a judgment plus costs was entered. A motion for new trial was denied and this appeal was prosecuted from the final judgment. Plaintiff has cross-appealed from the order denying its claim for attorney's fees.
The point for determination on the direct appeal is whether or not the trial court committed error in refusing to direct a verdict for defendant at the conclusion of the evidence.
Defendant contends that this question should be answered in the affirmative because its eighth plea raised the affirmative defense that plaintiff had knowledge of the dishonesty of the manager of its Lakeland office on February 1, 1948 and that under the provisions of Section 11 of the bond heretofore quoted, it was terminated as to said employee from that date.
Plaintiff contends on the other hand, that only one witness testified in support of defendant's eighth plea, that the testimony of said witness and the circumstances under which it was given was such that the trial court, instead of considering the motion for directed verdict, submitted the matter to the jury with appropriate instructions. The jury did not believe the...
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