The State ex rel. Massachusetts Bonding & Insurance Company v. Allen

• Decision Date: 13 April 1925
• Docket Number: 25615
• Citation: 271 S.W. 757,308 Mo. 109
• Parties: THE STATE ex rel. MASSACHUSETTS BONDING & INSURANCE COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

271 S.W. 757

308 Mo. 109

THE STATE ex rel. MASSACHUSETTS BONDING & INSURANCE COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals

No. 25615

Supreme Court of Missouri

April 13, 1925

Writ quashed.

Leahy Saunders & Walther for relator.

(1) When the character of a witness for truth and honesty is attacked in any way, it is competent for the party calling him to offer evidence showing his trust-worthiness. Costello v. Kansas City, 280 Mo. 576; State v Weissman, 238 Mo. 547. (2) When the petition charges the principal upon a bond with crime, and the answer denies the alleged crime, and when the issue whether the principal was guilty of the crime charged is submitted to the jury, the question of the character of the principal for truth and honesty is put in issue by the nature of the proceeding itself, and evidence of his character and reputation for truth and honesty is admissible. Orris v. Rock Island Ry Co., 279 Mo. 1; Gutzwiller v. Lackman, 23 Mo 168; Costello v. Kansas City, 280 Mo. 576; State v. Weissman, 238 Mo. 547. (3) The giving of plaintiff's instruction on the question of vexatious refusal to pay was error, as there was no issue of vexatious refusal to pay in the case. Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399; State ex rel. Ins. Co. v. Allen, 243 S.W. 842; Aufrichtig v. Ins. Co., 249 S.W. 916; Cradick v. Ins. Co., 256 S.W. 504. The penalty instruction should not have been given in any event, because it did not include the elements of (a) a refusal to pay prior to the institution of suit; (b) willfullness in thus refusing to pay, and (c) as the facts appeared to a reasonable and prudent man before trial. Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399.

John V. Lee for respondents.

(1) Inquiry on certiorari is limited to contents of opinion, which is final and conclusive as to the facts, precluding consideration of all questions of evidence not therein stated. State ex rel. v. Allen, 243 S.W. 841; State ex rel. v. Ellison, 266 Mo. 610; State ex rel. v. Reynolds, 213 S.W. 804; State ex rel. v. Ellison, 208 S.W. 443. (2) The scope of review on certiorari concerns solely the question of conflict of conclusions of law on facts stated; error of opinion not in conflict or merits of the case as presented below not considered. State ex rel. v. Reynolds, 200 S.W. 1041; State ex rel. v. Ellison, 220 S.W. 501. (2) Opinion below contains conclusions of law on facts stated in no wise in conflict with the decisions of this court. Lockwood v. Atlantic Mut. Ins. Co., 47 Mo. 50; Browning v. Railroad, 124 Mo. 71; Minter v. Bradstreets Co., 174 Mo. 444; Smith v. Fordyce, 190 Mo. 1; Waddell v. Railroad, 213 Mo. 8; Norris v. Railroad, 239 Mo. 695; King v. St. Louis, 250 Mo. 501; Powell v. Railroad, 255 Mo. 420; State ex rel. v. Reynolds, 257 Mo. 38; Sang v. St. Louis, 262 Mo. 463; Hoover v. Elec. Terminal Ry., 227 S.W. 79. (3) Putting character in issue means that it must be of particular importance, and not simply that it may be affected or that it arises as a mere incident. Orris v. Railroad, 279 Mo. 1; Bank v. Richmond, 235 Mo. 532; Vawter v. Hultz, 112 Mo. 633; Alkire Gro. Co. v. Taggart, 78 Mo.App. 166.

Ragland, P. J. All concur, except Atwood, J., not sitting.

OPINION

RAGLAND

Certiorari, to quash, on the ground of conflict with decisions of this court, the judgment and opinion of the St. Louis Court of Appeals in a cause lately depending before it, entitled: "Niese Grocer Company, a corporation, Respondent, v. Massachusetts Bonding & Insurance Company, a corporation, Appellant." The opinion therein follows:

"This is an action upon a fidelity bond, executed by the defendant whereby in consideration of a premium paid to it defendant, among other obligations assumed by it, guaranteed to pay to plaintiff such pecuniary loss of money or other personal property as plaintiff might sustain by any act or acts of fraud, dishonesty, forgery, theft, larceny, embezzlement, wrongful abstraction or willful misapplication on the part of one Robert A. Glassey, an employee of plaintiff, not exceeding the sum of $ 1,000.

"It is unnecessary to set forth the pleadings at length. The petition, after making allegations as to the execution and tenor of the bond, alleges that there was a breach thereof in that Glassey, as plaintiff's employee, 'by acts of fraud, dishonesty, forgery, theft, larceny, embezzlement, wrongful abstraction or willful misapplication,' converted to his own use money of plaintiff in the sum of $ 2025, which came into his hands by virtue of his employment while the bond was in force and effect; alleges that plaintiff complied with all the conditions of the bond, and that defendant vexatiously refused to pay the loss, and prays judgment for $ 1,000, the penalty of the bond, and for a reasonable attorney's fee.

"The answer admits the execution of the bond and puts in issue the other allegations of the petition.

"The plaintiff corporation was engaged in the wholesale grocery business in the city of St. Louis, and Glassey was employed by it as a salesman to solicit orders from retail dealers in the city of St. Louis. Glassey's employment with plaintiff began in February, 1918, and continued until the latter part of January, 1920. It is not disputed that the bond sued upon was in force and effect at the time of plaintiff's alleged loss.

"According to the testimony in plaintiff's behalf, Glassey was employed by plaintiff under an oral contract by which he was to receive a commission on goods sold by him of forty-five per cent of the 'ascertained profits' on such goods (no commission being paid on sugar or returned goods), he being allowed a drawing account, at first, of $ 37.50 per week, which was later increased to $ 47.50, and subsequently reduced to $ 37.50. The rules of the company required Glassey to mail to plaintiff daily an 'individual slip' for each collection, together with all checks received by him from customers for goods sold and delivered to them; and he was likewise required to make prompt remittance for cash collections, though he was permitted to deposit such collections in his own bank account and to mail his personal checks therefor to plaintiff. The testimony for plaintiff is to the effect that the profits were figured on the basis of the true cost of the commodities without the addition of expense of conducting the business, plaintiff being credited with forty-five per cent of such profits on goods sold by him; and that Glassey was furnished with a loose-leaf book showing cost prices and selling prices, which was revised from time to time, and was furnished each month with a statement showing the profits on the goods sold by him and his share thereof.

"It appears that early in January, 1920, plaintiff learned that Glassey was not making daily reports, and had failed to report some collections which he had made. One Buhrmann, plaintiff's credit man and accountant, who stated that he had personal supervision of plaintiff's books and records relating to the accounts of salesmen, testified that he called Glassey's attention to these unreported collections, and that Glassey said he would 'fix it up' in a few days, but that nothing further was done about it until the evening of January 23, 1920, when he telephoned Glassey at the latter's home, and was told by Glassey that the matter 'was all fixed up and was in the mail.' It appears that the following day, or within a day or two, plaintiff received from Glassey a letter enclosing a statement prepared by him, with his check for $ 285.13. In this statement Glassey made a list of various sums collected by him from customers of plaintiff and which he had not reported, aggregating $ 2,457.06. To this he added an item of $ 464.47, being the amount which, according to his figures, he was then overdrawn on plaintiff's books. He charged himself with the sum of these two items, to-wit, $ 2,921.53, and credited himself with $ 2,025, as follows: 'I sold about $ 108,000. Due me $ 2,025 -- 1 7/8%.' He then took further credit for certain checks said to have been mailed by him to plaintiff, aggregating $ 611.40, and for the amount of his personal check, to-wit, $ 285.13, balancing the account. In his letter he tendered his resignation.

"The testimony adduced by plaintiff and the exhibits introduced by it tend to show that Glassey's total sales for plaintiff (exclusive of sugar) amounted to $ 107,974.57; that the total profits thereon were $ 8,106.31, of which Glassey's share (45 per cent) amounted to $ 3,647.85; and that upon the termination of his employment with plaintiff there was due from him to plaintiff $ 2,455.81, of which $ 555.69 was the true amount of the overdraft referred to in Glassey's letter mentioned above. Such was shown to be the status of Glassey's account upon plaintiff's books. It is unnecessary to refer in detail to the voluminous evidence touching the matter. There is some dispute in the testimony as to a few minor items which, it is claimed, Glassey collected and for which he did not account; but since the items could make a difference of but a few dollars in the account, and the recovery is limited to the penalty of the bond, it is needless to encumber the opinion with a statement of the testimony relative thereto.

"It further appears that plaintiff duly made demand upon defendant some months prior to the institution of the suit, filing with defendant a verified claim, but that defendant declined to pay the idemnity vouchsafed by the bond. And there is testimony in plaintiff's behalf tending to show that $ 500 is a reasonable attorney's fee for the services rendered by plaintiff's counsel in connection with the prosecution of the suit.

"Glassey testifying as defendant's witness, said that...