Opinion
6 Div. 379.
November 4, 1926.
Appeal from Circuit Court, Jeffersoyn County; C. B. Smith, Judge.
Hugh Walker, of Anniston, Oliver Henderson, of Birmingham, and Steiner, Crum Weil, of Montgomery, for appellant.
The bond being open to two constructions, that one favorable to assured is to be adopted, being consistent with the objects for which the contract was made. 25 C. J. 1091; Illinois Surety Co. v. Donaldson, 202 Ala. 183, 79 So. 667; Ala. Fid. Cas. Co. v. Ala. P. S. Bank, 200 Ala. 337, 76 So. 103; American Surety Co. v. Pauly, 170 U.S. 133, 18 S.Ct. 552, 42 L.Ed. 977; Guarantee Co. v. Mechanics' Sav. Bank Trust Co., 80 F. 766, 26 C.C.A. 146. The mere recital of the location of the employee did not limit the location of the employment. Citizens' Trust Guaranty Co. v. Globe Rutgers Fire Ins. Co., 229 F. 331, 143 C.C.A. 446, Ann. Cas. 1917C, 416. A misdescription will not defeat the policy, unless the variance is material. 2 Cooley's Briefs, 1283; Exchange Underwriters' Agency v. Bates, 195 Ala. 161, 69 So. 959; Le Gendre v. Scottish Union National Ins. Co., 95 App. Div. 562, 88 N.Y. S. 1012. Parol proof may be made to show mistake as to description of location. 26 C. J. 524; Scottish Union v. McKone, 27 F. 813, 142 C.C.A. 337; Shivers v. Farmers' Mutual Fire Ins. Co., 99 Miss. 744, 55 So. 965; Dodge v. Grain Shippers' Mutual Fire Ins. Ass'n, 176 Iowa, 316, 157 N.W. 955; Ala. Mutual Fire Ins. Co. v. Minchener, 133 Ala. 632, 32 So. 225.
Coleman, Coleman, Spain Stewart, of Birmingham, for appellee.
Where it appears from the record that the court properly found for defendant on the evidence adduced, it becomes unnecessary for the court to pass on alleged errors or rulings on pleading or evidence. Sovereign Camp, W. O. W. v. Alford, 210 Ala. 378, 98 So. 130; New Brunswick Fire Ins. Co. v. Nichols, 210 Ala. 68, 97 So. 82; Riedermann v. Stewart, 20 Ala. App. 512, 103 So. 310; Rule 45, Sup. Ct. No construction can be availed of to refine away terms of a contract expressed with sufficient clearness to convey the parties' meaning. McConnell-White-Terry Realty Ins. Co. v. Fidelity Deposit Co., 212 Ala. 339, 102 So. 617; Guarantee Co. v. Mechanics' Sav. Bank Trust Co., 183 U.S. 402, 22 S.Ct. 124, 46 L.Ed. 253; Union Central Relief Ass'n v. Johnson, 198 Ala. 491, 73 So. 816. The obligation of a surety is not to be extended beyond the terms of the contract. First Nat. Bank v. Gerke, 68 Md. 449, 13 A. 358, 6 Am. St. Rep. 453; Rapier v. Louisiana Eq. Life Ins. Co., 57 Ala. 100.
The chief and, indeed, the decisive question in this case, as shown by the record, is whether the guaranty of the bond is limited to the defalcations of the employee, Sneed, in managerial service, at Oxford, Ala., or whether it covers such service, as actually rendered by him, in the Denegre Company's business, at Anniston.
The trial court received evidence showing that the company never had a place of business at Oxford, but did have one at Anniston, where it operated one of its stores at the time of defendant's guaranty, and continuously from 1918 to 1921; and that Sneed, at first, lived at Oxford, which lies immediately outside of Anniston. But the guaranty bond, upon which the action is founded, was excluded from the evidence upon the objection of defendant — upon the theory, we presume, that, as a matter of law, the bond could not be applicable to Sneed's managerial service other than in a store conducted by him at Oxford.
Looking only at the designations of position and location in the schedule, we would be inclined to hold that the location named as to each of the seven employees included in the guaranty was intended to be definitive and not descriptive merely; and hence that a claim for indemnity under the bond should be limited, as to each employee, to his services in the conduct of a business at the location specified for him.
But a comprehensive view of the entire document leads us to a different conclusion. It contains provisions permitting "interchanges or substitutions among any of the employees," provided the amount of liability should not be increased as to any employee; and, again, no distinction is made between Birmingham, Montgomery, Mobile, Dothan, and Oxford (or Anniston), as to the amount of the guarantor's liability or the amount of the premium paid by the insured.
Very clearly, the contract of guaranty did not contemplate, as a material factor, the location of Sneed's service at Oxford rather than at Anniston. The material factors were the personality of the manager and the character of his service; and it was competent for the employer-guarantee to show that it had no business at Oxford, and that the employee was conducting the business in the adjoining city of Anniston, and therefore that the Anniston business was the one intended to be covered by the undertaking as to Sneed.
Contracts of guaranty, especially when based upon a valuable consideration moving to the guarantor, are not like contracts of ordinary suretyship, but are construed more strongly against the guarantor, when their language is ambiguous and susceptible of more than one meaning. Scott v. Wyatt, 24 Ala. 489, 495, 60 Am. Dec. 485; Russell v. Garrett, 204 Ala. 98, 85 So. 420; 28 Corp. Jur. 933, § 79. This is a contract of indemnity insurance, and this court has held that it must be construed as are other contracts of insurance, i. e.:
"All fair doubts are to be resolved in favor of the party to be indemnified." Ala. Fid. Cas. Co. v. Ala. Penny Sav. Bank, 200 Ala. 337, 76 So. 103 [10th headnote]; 31 Corp. Jur. 426, § 18.
The plaintiff offered as evidence the identical bond set out in his complaint, and its rejection was prejudicial error. It is true, as found by the trial court, that there was no evidence showing any defalcation by Sneed; but the exclusion of the bond, upon which plaintiff's claim exclusively depended, rendered such evidence nugatory and, indeed, legally inadmissible, and ended the case so far as plaintiff's ability to proceed with it was concerned. Plaintiff might better have taken a nonsuit at that stage, but was not bound to do so, as such a ruling may be reviewed on appeal after final adverse judgment.
The issues seem to have been adequately presented by the pleadings before the court, and we deem it unnecessary to pass upon technical questions of pleading.
We think the cause should be tried again with the bond in evidence, and, to that end, the judgment will be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.