United States Fidelity & Guaranty Company v. Cook

• Decision Date: 24 November 1931
• Docket Number: 1691
• Citation: 5 P.2d 294,43 Wyo. 356
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY v. COOK
• Court: Wyoming Supreme Court

5 P.2d 294

43 Wyo. 356

UNITED STATES FIDELITY & GUARANTY COMPANY v. COOK

No. 1691

Supreme Court of Wyoming

November 24, 1931

ERROR to the District Court, Laramie County; VOLNEY J. TIDBALL Judge.

Action by J. Sheldon Cook against United States Fidelity & Guaranty Company, a corporation, to recover funds paid to said company by plaintiff under duress. From a judgment for plaintiff defendant brings error. The material facts are stated in the opinion.

Affirmed.

For the plaintiff in error there was a brief by Gillette & Clark, of Denver, Colorado, and A. D. Walton, of Cheyenne, Wyoming, and oral argument by Mr. Walton.

The petition does not state facts sufficient to constitute a cause of action; it is not alleged that the money was received for the use of the plaintiff. 41 C. J. 49; nor that threats of Tyler overcome plaintiff's will to an extent destroying his freedom of contract. Lewis v. City (Calif.) 82 P. 1106; Kozasa v. Rwy. Co. (Mont.) 201 P. 682; Daniel Bros. v. Richardson, 146 S.E. 505. The evidence is insufficient to support the verdict. It clearly established the fact that the bank lost $ 2,310.00 either by plaintiff taking it, or through his negligence in not putting it in the bank vault. Carton v. Board, 10 Wyo. 416; Houtz v. Board, 11 Wyo. 152, 48 C. J. 742, 753. The rule as to liability of an agent is well stated in 41 C. J. 54. Duress was not established by the evidence. 13 C. J. 396; Radich v. Hutchins, 95 U.S. 210, 213; Int. Har. Co. v. Vovoril, 187 F. 973; Kline v. Kline, (Ariz.) 128 P. 805; Baldwin v. Savage, (Ore.) 159 P. 80; Van Alstine v. McAlden, 141 Ill. A. 27. The modern doctrine has somewhat softened the rule at common law. 13 C. J. 402, 9 R. C. L. 717; Rochester Works v. Weiss, (Wis.) 84 N.W. 866; Wolff v. Bluhm, (Wis.) 70 N.W. 73, and cases cited. Duress by mere advice, direction, influence and persuasion is not recognized in law. 13 C. J. 397, 9 R. C. L. 717; Bank v. North, (Wis.) 90 N.W. 1016 and cases cited. The duress must have existed at the time that payment was made. 48 C. J. 753, and will not invalidate a contract made after opportunity for deliberate action. 13 C. J. 397; Bank v. Helling, (Minn.) 202 N.W. 20; Zimmerman v. Benz, (Minn.) 202 N.W. 272; Cornwall v. Anderson, (Wash.) 148 P. 1-3; Bennett v. Luby, (Wis.) 88 N.W. 37; Clement v. Buckley Merc. Co., (Mich.) 137 N.W. 657-661; Hogan v. Leeper, (Okla.) 133 P. 190. A mere scintilla or modicum of conflicting evidence does not require a submission of the case to the jury. Small Co. v. Lamborn & Co., 267 U.S. 248, and cases cited. This court may order judgment in favor of one who moved for directed verdict at the trial. Snowball v. Maney Bros., 39 Wyo. 84. The court erred in giving Inst. 4, and in refusing to give defendant's requested Inst. No. B. Houtz v. Comm'rs., supra, Kilbourne v. Buchanan, (Me.) 57 Am. Repts. 816; Thorne v. Pinkham, 30 Am. St. Rep. 355. The court erred in refusing to give defendant's requested Inst. No. D. Carton v. Board, supra, 48 C. J. 742, and defendant's requested Inst. No. E. Butler v. Livermore, 52 Barb. (N. Y.) 570, and defendant's requested Inst. No. F. The court erred in overruling defendant's motion to vacate the verdict, and for judgment, notwithstanding the verdict, in view of the state of the evidence. The court erred in giving Inst. No. 4.

For the defendant in error there was a brief by W. L. Walls and John Dillon, of Cheyenne, Wyoming, and oral arguments by Mr. Walls and Mr. Dillon.

The petition meets the requirements of the provisions of the Code of Civil Procedure of this state. An action will lie where one obtains money from another by oppression, imposition, extortion, deceit or taking undue advantage. 41 C. J. 46. Designation of August 20, 1924, as the date of the first meeting between plaintiff and Tyler was inadvertently made, and plaintiff would have been permitted to amend upon application to show that September 16, 1924, was the intended date. 5707 C. S. Redman v. U. P. R. C., 3 Wyo. 678; Lellman v. Mills, 15 Wyo. 149; Stockmen's Company v. Johnson, 33 Wyo. 457. The judgment will not be disturbed because no formal amendment was made. 5708 C. S. Sower v. King, 32 Wyo. 167; Kuhn v. McKay, 7 Wyo. 42. The evidence shows that Tyler obtained the money for defendant Surety Company by threats of blacklisting plaintiff with every surety and bonding company in the United States, and a criminal prosecution for embezzlement, which would place him in the penitentiary at Leavenworth. These threats were repeated on different occasions until the 26th of September, the date Cook paid money to Tyler. This constituted duress. 13 C. J. 402, Cornwell v. Anderson, 21 R. C. L. 146; Denney v. Reber, 114 N.E. 424; Sulzner v. Cappian, 39 A. L. R. 421; Cribbs v. Sowle, 40 N.W. 557; Galusha v. Sherman, 81 N.W. 495; Joarmin v. Ogelvie, 16 L. R. A. 376. Threats of criminal prosecution inducing performance of an act constitute duress. Lacks v. Butler Co., 102 S.W. 1007. What constitutes duress is a matter of law, but whether duress exists in a particular prosecution is a matter of fact for the jury to determine. Kan. v. Gracy, 144 N.W. 625; Nelson v. Co., 143 N.W. 606; Cribbs v. Sowle, supra; Bank v. Loos, 120 N.W. 317. The jury in the present case found that duress existed and that finding is supported by a great preponderance of the evidence. The judgment should be affirmed.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

The petition in this case alleges, briefly, that the appellant, in September, 1924, received from Cook, the plaintiff, $ 2280.98 to the use of plaintiff and without consideration; that the money was obtained from him by duress and coercion; that plaintiff had been paying teller of the First National Bank of Cheyenne, Wyoming, which on July 9, 1924, went into the hands of a receiver, and the defendant, a surety company, had insured the bank, among other things, against dishonesty of its employees; that after the closing of the bank, it was claimed that there was a shortage in the accounts of the plaintiff in the sum of $ 2280.98; that thereafter one Clarence B. Tyler, manager and agent of the defendant surety company, accused plaintiff of having stolen and embezzled the amount of this shortage, which plaintiff denies; that Tyler threatened that unless plaintiff would deliver the amount of the shortage to him, he would have plaintiff arrested, prosecuted for embezzlement, sent to the penitentiary, blacklisted so that plaintiff could never again obtain any bond, or other employment in a bank, and cause him and his family to be disgraced; that Tyler made these threats to both plaintiff's sister and mother, these threats being communicated to plaintiff; that plaintiff paid the money above mentioned to Tyler against his will and because of the threats above mentioned and in the fear that he would carry them out. Judgment is prayed for the amount so paid, with interest. Issues were duly joined on the allegations.

Plaintiff paid the sum sought to be recovered on September 27, 1924. In the spring of 1925, he was indicted in the federal court for embezzlement; he was tried in the fall of 1925 and acquitted. He made demand on the defendant for the return of the money paid it in December, 1925. The case against the defendant has been tried twice, the first time in April, 1928, with the Hon. C. O. Brown presiding. That trial resulted in a verdict for plaintiff herein. A motion for a new trial was granted, and the case was tried the second time in April, 1930, with the Hon. V. J. Tidball presiding. That trial, too, resulted in a verdict in favor of the plaintiff, and from a judgment thereon, the surety company, defendant herein, has appealed. Since it is claimed that there is not sufficient evidence to sustain the verdict, it is necessary to give a brief review thereof.

It appears that in 1924 the plaintiff and respondent herein was about 23 years of age; that he quit school at the age of about 15 and began work in the First National Bank of Cheyenne as a messenger; that he subsequently became teller of the bank and at the time that the bank closed was its head teller. Considerable evidence was introduced on the question whether or not the plaintiff was guilty of embezzlement. It is necessary to give merely an outline. It appears that the bank closed each day at three o'clock in the afternoon. Immediately thereafter the tellers made up a statement. At 3 o'clock on July 8th, 1924, the day before the bank was taken over by the comptroller of the currency, plaintiff counted the money and other items on hand, totalling $ 93,330.22, made up of nine different items, of which $ 27,788 consisted of bank notes--currency. This amount was subsequently changed by plaintiff (in pencil) to $ 25,478.00 making a difference of $ 2310--the amount of the shortage claimed herein. It appears, however, that while the bank was nominally closed at three o'clock, it was not so in fact, but that considerable business was done thereafter, and generally up to about 5.30 in the afternoon, so that the currency on hand at three o'clock might be reduced subsequently by checks or other items drawn against it. Plaintiff testified that it was in this manner that the $ 27,788 of currency on hand at three o'clock of July 8 was reduced by $ 2310, and that the checks or other items by which this reduction took place must have been lost in the confusion attendant on the bank passing into the hands of the comptroller of the currency. Plaintiff stated that, on account of the business always done after three o'clock and until late in the afternoon, a final statement was never made on that day, but that this was always done the next morning; that the checks and other items of business would be put together,...