United States Fidelity & Guaranty Co. v. Williams

• Decision Date: 28 June 1909
• Docket Number: 13,802
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY v. MIMS WILLIAMS
• Court: Mississippi Supreme Court

49 So. 742

96 Miss. 10

UNITED STATES FIDELITY & GUARANTY COMPANY v. MIMS WILLIAMS

No. 13,802

Supreme Court of Mississippi

June 28, 1909

FROM the circuit court of Simpson county, HON. ROBERT L. BULLARD Judge.

Williams receiver of the Magee Bank, appellee, was plaintiff in the court below; the Fidelity & Guaranty Company, appellant, was defendant there. From a judgment in plaintiffs favor defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

G. Q Hall, Hall & Jacobson, for appellant.

Alexander & Alexander, for appellee.

[The briefs of counsel in this case were not to be found when the reporter reached it; hence no synopses of them is given.]

OPINION

MAYES, J.

The declaration in this case substantially alleges that on September 11, 1902, one Fred R. Powell was employed as the cashier of the Magee Bank, and while so employed the United States Fidelity & Guaranty Company, for a valuable consideration, executed and delivered to the Magee Bank a guaranty bond, by which bond the guaranty company obligated itself to reimburse the bank for any pecuniary loss it might sustain by reason of the fraud or dishonesty of Powell, committed while in the discharge of the duties of his position and amounting to embezzlement or larceny, and also committed during the continuance of the term of one year ending October 1, 1903, or any renewal thereof, or within six months from the death or dismissal or retirement of Powell from the service of the bank within the period of the bond, whichever of these events first happened; the total liability of the guaranty company under the bond as first issued, or under any renewal thereof, not to exceed the sum of $ 10,000. The declaration further alleges that for a valuable consideration and at the first expiration of the original bond, on October 1, 1903, there were successive renewals at the expiration of each year throughout the entire time that Powell was acting as cashier for the Magee Bank; the last one being from October 1, 1907, to October 1, 1908. The renewal certificates are all made exhibits to the declaration. All of the renewals are in identically the same language, and are as follows: "In consideration of the sum of fifty dollars, the United States Fidelity & Guaranty Company hereby continues in force bond No. 122,437, in the sum of ten thousand dollars, on behalf of Fred R. Powell, in favor of Magee Bank, Magee, Mississippi, for the period beginning the 1st day of , and ending on the 1st day of , subject to all the covenants and conditions of said original bond heretofore issued on the 1st day of October, 1902."

The declaration further alleges that at various times between the 1st day of October, 1906, and the suspension of the bank and appointment of the plaintiff as receiver, the Magee Bank lost large sums of money by reason of the fraud and dishonesty of Powell amounting to embezzlement or larceny, which losses occurred while Powell was in the discharge of his duties as cashier of the bank; the losses incurred by the bank on account of Powell's fraud being more than $ 10,000. It will be seen that the declaration does not allege that the losses occurred "during the continuance of any particular term, or of any renewal thereof, and discovered during said continuance, or of any renewal thereof, or within six months thereafter," though the bond itself provides, as a condition of liability on the part of the guaranty company, "that for the consideration of the premises the company shall, during the term above mentioned, or any subsequent renewal of such term, and subject to the conditions and provisions herein contained, at the expiration of three months next after proof satisfactory to the company, as hereinafter mentioned, make good and reimburse to the said employer such pecuniary loss as may be sustained by the employer by reason of the fraud or dishonesty of the said employe in connection with the duties of his office or position amounting to embezzlement or larceny, and which shall have been committed during the continuance of said term, or of any renewal thereof, and discovered during said continuance, or of any renewal thereof, or within six months thereafter, or within six months from the death or dismissal or retirement of said employe from the service of the employer within the period of this bond, whichever of these events shall first happen; the company's total liability on account of said employe under this bond, or any renewal thereof, not to exceed the sum of $ 10,000."

It is quite true that the declaration has a general allegation "that the said Powell, while cashier and acting as such did prior to the 1st day of October, 1907, and during the life of said bond, fraudulently and dishonestly withdraw and take of the funds of the bank," etc.; but there is no specific allegation in the declaration that the acts done were done "during the continuance of said term, or any renewal thereof, and discovered during said continuance, or any renewal thereof, or...