Roach-Manigan Paving Co. v. Southwestern Surety Ins. Co.
| Decision Date | 19 December 1921 |
| Docket Number | No. 21149.,21149. |
| Citation | 238 S.W. 119 |
| Parties | ROACH-MANIGAN PAVING CO. v. SOUTHWESTERN SURETY INS. CO. et al. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.
Action by the Roach-Manigan Paving Company against the Southwestern Surety Insurance Company and another. Judgment for the plaintiff, and defendants appeal. Reversed and remanded.
By petition it is charged that the plaintiff is a West Virginia corporation engaged in the business of contracting for street improvements; that defendants were engaged in the business of indemnity insurance or bonding employees; that plaintiff had in its employ as cashier and bookkeeper one Ben H. Mason; that the said plaintiff procured from the Southwestern Surety Insurance Company a policy of indemnity (or surety bond) insuring it against loss to the amount of $25,000 "sustained by plaintiff by acts of the fraud or dishonesty of said Ben H. Mason, as said cashier and bookkeeper of plaintiff during the period from March 16, 1914, to March 16, 1915."
The petition then charges acts of larceny or embezzlement of its funds by said Mason in the aggregate sum of $59,645.04, of which there is an itemized statement. The petition further charges that by a contract in the latter part of 1915 the Southern Surety Company assumed the liabilities of the Southwestern Surety Insurance Company upon this and other indemnity contracts, and that demand was made of defendants for the amount due plaintiff under such contract, but that defendants vexatiously refused payment. The prayer was for the face of the policy, with interest from date of demand, and for the payment of 10 per cent. of said amount as damages for vexatious refusal to pay, together with a reasonable attorney's fees, and cost of suit.
The case went to trial upon a fourth amended answer, the details of which had better be noted in the course of the opinion where point is thereon made. Reply placed at issue all new matter of the answer and averred waiver of some of the conditions made in the answer.
Upon a trial before a jury the plaintiff had a verdict of $32,701 made up of the following items, as expressly stated in the verdict.
Amount due under policy.................. $25,000 00
Interest................................. 2,201 00
Damages.................................. 2,500 00
Attorneys' fees.......................... 3,000 00
__________
Total............................... $32,701 00
The judgment followed the verdict, and defendants have appealed.
D. Johnson and L. C. Johnson, both of St. Louis, for appellants.
Kinealy & Kinealy, of St. Louis, for respondent.
GRAVES, J. (after stating the facts as above).
A vital question lies upon the door mat in this case. Plaintiff sued upon an alleged lost indemnity bond. That there was issued to plaintiff such a bond is established both by answer, admissions and outside proof. Defendants produced a bond, and put it in evidence, which answered the description (as to date and terms) of the one pleaded in the petition. It was no doubt the original bond. Defendants also introduced by evidence an "employer's statement," which defendants claim was made prior to the issuance of the bond sued upon, and was one of the inducing causes for the making of the bond. Upon untruthful statements (knowingly made) in this "employer's statement" defendants urge that there can be no recovery herein; in other words, that the false statements (knowingly made) voided the bond entirely. There is evidence tending to show that Mason was a defaulter as an officer in a bank at Ada, Okl., and that plaintiff had knowledge of such fact. At least that plaintiff's officers knew that another company had declined to issue to plaintiff a bond upon Mason because of irregularities in his business conduct at Ada, Okl. In the briefs there is a dispute as to whether the "employer's statement" introduced by defendant was made by plaintiff. There seems to be no serious question that the bond introduced by defendants is the bond relied upon by the plaintiff. By plaintiff it was shown that the bond relied upon was a renewal bond, which renewal was by way of a certificate in this form:
"In consideration of the sum of $125.00 the Southwestern Surety Insurance Company, hereinafter called the company, hereby continues in force bond No. 17463 in the sum of $25,000.00 on behalf of Ben H. Mason as cashier and bookkeeper, Fort Worth, Tex., in favor of Roach-Manigan Paving Company, Memphis, Tenn., for the term beginning the 16th day of March, 1914, and ending the 16th day of March, 1915, subject to all the covenants and conditions of said bond."
This statement in dispute is signed by the Roach-Manigan Paving Company (employer), by W. P. McCadden, secretary. Its date is the 1st day of February, 1913, and spoke of a bond the term of which was to begin March 16, 1913. This date fits in with all the documentary evidence in the case. Such bond would be due for annual renewal on March 16, 1914, and the renewal would expire on March 16, 1915. The renewal certificate introduced by the plaintiff shows the same dates. All the facts show a bond in 1913, renewed in 1914 for a term (each time) beginning on March 16th.
The statement is prior in date to the bond. Its exact date is fully explained by the former secretary of plaintiff. Defendants produced it, showing that it had reached them. This excludes the oral testimony that it was acted upon in the issuance of the bond. It will be presumed that it was considered.
These statements, so signed, were made the basis of the original bond, and of any renewal thereof. Hence their importance here. Being signed by the secretary, they speak, prima facie, for the corporation. In the instructions the plaintiff was given instruction No. 7, which reads:
"The court instructs the jury that, if they believe from the evidence that the statement signed in the name of the Roach-Manigan...
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