Planter's Sav. Bank of Greer v. American Sur. Co. of New York

• Decision Date: 27 April 1935
• Docket Number: 14054,14128.
• Parties: PLANTER'S SAV. BANK OF GREER v. AMERICAN SURETY CO. OF NEW YORK.
• Court: South Carolina Supreme Court

181 S.E. 222

177 S.C. 363

PLANTER'S SAV. BANK OF GREER v. AMERICAN SURETY CO. OF NEW YORK.

No. 14054, 14128.

Supreme Court of South Carolina

April 27, 1935

On Rehearing August 13, 1935.

On Petition for Rehearing.

Appeal from Common Pleas Circuit Court of Spartanburg County Jennings L. Thompson, County Judge.

Action by the Planter's Savings Bank of Greer against the American Surety Company of New York. From a judgment for plaintiff, defendant appeals.

Affirmed on condition of remittitur.

Lyles & Daniel, of Spartanburg, for appellant.

Carlisle Brown & Carlisle, of Spartanburg, for respondent.

WM. H GRIMBALL, Acting Associate Justice.

This cause is a suit on what is called a "Bankers' Blanket Bond," which was issued by appellant to respondent bank, and which covered certain of respondent's employees, including its vice president. Those portions of the bond pertinent to the issues on this appeal are as follows:

"Section 1. The American Surety Company of New York, a corporation of the State of New York, with its home office in the city of New York, New York, hereinafter called the underwriter, in consideration of an annual premium agrees to indemnify Planters Savings Bank, Greer, South Carolina, hereinafter called the insured, against the direct loss, sustained while this bond is in force and discovered as hereinafter provided, of any money or securities, or both, as defined in section 5 hereof, in which the insured has a pecuniary interest, or held by the insured as collateral, or as bailee, trustee or agent, and whether or not the insured is liable therefor (such money and securities being hereafter called property), in an amount not exceeding twenty-five thousand and no/100 dollars ($25,000) as follows:"

A. Through any dishonest act, wherever committed, of any of the employees, as defined in section 6 hereof, whether acting alone or in collusion with others. * * *

Sec. 16. This bond is subject to the following express conditions:

At the earliest practicable moment, and at all events not later than ten days, after the insured shall discover any loss hereunder, the insured shall give the underwriter notice thereof by registered letter or telegram, addressed to it at its home office, and shall also, within three months after such discovery, furnish to the underwriter at its home office affirmative proof of loss, with full particulars."

On this bond suit was brought by the bank against the surety company in the county court of Spartanburg county for an alleged shortage on the part of one J. E. Gibson, its vice president, in the sum of $1,314.61 together with certain items of interest. The record shows that the surety company had paid under the terms of the bond the sum of $18,401.41 on October 6, 1932, and also $211.12 on December 18, 1932, but had denied liability for the items making up the sum for which this suit was commenced. Trial resulted in a verdict for the bank against the surety company in the sum of $1,964.61, aggregating the total amount sued for together with the interest items.

This appeal is from the charge to the jury and from the order refusing a motion for a new trial.

Error is assigned in that the jury were charged that "plaintiff must be able to furnish an affirmative proof of any loss that he finds, and until you find that he had sufficient information to justify his claim under the bond by furnishing affirmative proof so as to be enabled to collect, until then the bond is not breached; but the bond is not breached until you find from the facts as you believe them to be that the plaintiff was able to comply by showing affirmative proof of the breach of the bond."

Appellant charges error in that this charge, in effect, left it within the discretion of the plaintiff as to when notice should be given the defendant, and when the claim should be filed; whereas, the terms of the bond made it imperative that notice be given within ten days after date of discovery and that the claim be filed within ninety days from the date of discovery.

The record shows that shortly before the above statement the trial judge charged the jury that any shortage complained of by the plaintiff must come within the terms of this bond; that is, through any dishonest act wherever committed of any of the employees as defined in this bond. "I charge you," said he, "that if there is found a shortage, the provisions of this bond must be further complied with, in that 'it must be reported to the company at the earliest practicable moment, and at all events not later than ten days after the insured shall discover any loss hereunder, the insured shall give the underwriter notice thereof by registered letter or telegram, addressed to it at its home office." D"

We are of the opinion that the charge as a whole correctly stated the principles of law involved and that this exception should be dismissed.

Exception is made to the inclusion in the judgment of a certain item in the sum of $354.12. It seems that in March, 1931, the bank examiner's report contained the following item "Shortage-cash charge-$354.12." And the record shows that the vice president, J. E. Gibson, was in charge of the control cash account, and that this was a shortage chargeable against him. At that time the bank made no report to the...