Union Central Life Insurance Company v. Prigge

• Decision Date: 30 October 1903
• Docket Number: 13,700 - (47)
• Citation: 96 N.W. 917,90 Minn. 370
• Parties: UNION CENTRAL LIFE INSURANCE COMPANY v. H. G. F. PRIGGE
• Court: Minnesota Supreme Court

96 N.W. 917

90 Minn. 370

UNION CENTRAL LIFE INSURANCE COMPANY v. H. G. F. PRIGGE

Nos. 13,700 - (47)

Supreme Court of Minnesota

October 30, 1903

Appeal by defendant Henry F. Greenhagen from an order of the district court for Wright county, Giddings, J., denying a motion for judgment notwithstanding the verdict or for a new trial. Reversed and new trial granted.

SYLLABUS

Bond of Indemnity.

Language found in a surety bond given to an insurance company by its agent construed. Held to contain, among other obligations, an unequivocal promise to indemnify the obligee company for all loss arising out of any indebtedness then due and owing by the agent.

Subsequent Indebtedness of Obligor.

Held further, that as to an indebtedness accruing subsequent to the execution and delivery of the bond, a case was made for a jury under the rules laid down in Manchester F.A. Co. v Redfield, 69 Minn. 10. And also that, when passing upon the question of the obligee's good faith, the fact that the agent was delinquent when the bond was executed might be considered.

F. E. Latham and James C. Tarbox, for appellant.

Chas. P. Barker, for respondent.

OPINION

COLLINS, J.

This action was brought against defendants, Prigge, as principal, and Greenhagen, as surety, upon a bond executed and delivered by them to the plaintiff, an insurance company. This bond was conditioned that if Prigge, as the company's agent for procuring applications for life insurance, should

"Pay or hand over all moneys belonging to said company which shall at any time be received by him, or for which he shall be liable, * * * including all moneys so received prior to the date of this instrument (if any such there be) as well as that received thereafter, as also all moneys which he now owes or may hereafter owe said company, either on account of advances to him or otherwise, and shall faithfully discharge the duties as said agent, then this obligation shall be void."

Judgment was demanded as against both defendants for the full amount of the penalty of the bond, which was $500. At the trial below the court ordered a verdict in favor of the plaintiff against both defendants for the sum of $487.80. This appeal is from an order denying a new trial to defendant Greenhagen.

It appears from the record that the defendant Prigge entered into the employ of the plaintiff company as its agent some six months before the bond, which bore date June 29, 1900, was executed and delivered. This employment was under a contract which prescribed his duties and provided for a bond for faithful performance thereof on his part. But no bond was given until the one in question, some six months after he commenced work. Another similar contract was entered into simultaneously with the bond. It was alleged in the complaint that during this period, and prior to the execution of the bond, Prigge received from applicants for policies a certain amount of money, and of this, deducting his commissions, the sum of $143.04 belonged to plaintiff, and had not been paid over, and this stood admitted by the answer. On the pleadings, therefore, there was no dispute between the parties as to the sum of money due and owing from Prigge to the plaintiff at the time the bond was executed. It was further alleged in the complaint that subsequently, and after the bond was executed, and while Prigge was in plaintiff's employ about one year, he received various sums of money from policy applicants, and of these sums he held and retained the sum of $358.91 of the plaintiff's money, which should have been paid over to it. This allegation was put in issue by the answer, and it was averred that defendant Greenhagen did not know, when entering into the bond, that Prigge was then, or ever had been, in plaintiff's employ, or that he was indebted to it; and, further, that plaintiff wrongfully and fraudulently concealed the fact from him. We may say at the outset that, in so far as future faithfulness and discharge of duty were involved, no real distinction can be made between the condition in this bond and those considered in Traders' Ins. Co. v. Herber, 67 Minn. 106, 69 N.W. 701, and Capital F. Ins. Co. v. Watson, 76 Minn. 387, 79 N.W. 601. They are practically the same.

1. It is contended by counsel for the appellant that the court erred in receiving in evidence the entries found in the account books of plaintiff, the same being made up, it is alleged, wholly from admissions or memoranda furnished by Prigge when sending in applications for insurance, the precise point being that these entries are not competent evidence against Greenhagen, the surety upon the bond. As before stated, it stood admitted upon the trial that the principal upon the bond was in default to the plaintiff in the sum of $143.04 at the time the bond was executed. If the then existing default of the principal was absolutely secured by the bond, there can be no dispute whatever that plaintiff was entitled to recover the sum due, because there was no issue of fact made by the pleadings as to Prigge's indebtedness. It was therefore immaterial that incompetent evidence was introduced tending to establish a conceded claim.

The books of account were kept by the plaintiff in the usual course of business, and the foundation for the introduction of some of the entries therein appearing both in favor of and against Prigge, as to transactions subsequent to June 29, was sufficiently laid in accordance with the provisions of G.S 1894, § 5738. But it appeared from the testimony of...