Summary
noting that it is the objector's duty to bring any reserved ruling to the trial judge's attention
Summary of this case from Daniels v. StateOpinion
No. 41676.
March 6, 1961.
1. Evidence — principal and agent — reports made by agent in line of duty admissible.
Reports made by agent in line of duty are admissible in evidence.
2. Appeal — trial — reserved ruling — absence of request for final ruling precludes raising point on appeal.
Party offering evidence had duty to bring reserved ruling on objection thereto to trial court's attention, and, in absence of request for final ruling on reserved ruling, error could not be predicated thereon on appeal by party offering evidence.
3. Trial — reserved ruling — waived unless request for final ruling made.
Objection to evidence on which ruling is reserved is deemed waived, unless objector requests ruling thereon before case is submitted to jury.
4. Insurance — fidelity bond — "loss of inventory" not loss by "fraudulent or dishonest acts" of employees within provisions of fidelity bond.
Receipt of bad checks in payment for beer sold to business owned by distributor's local manager resulted in "loss of inventory", expressly excluded from coverage, and not loss by "frudulent or dishonest acts" of employees within fidelity bond agreement to indemnify distributor against such loss.
5. Insurance — fidelity bond — checks in payment for beer returned marked "insufficient funds" not covered under provisions of fidelity bond.
Provision making fidelity bond inapplicable to any employee from time insured should have knowledge or information that employee had committed fraudulent or dishonest act, excluded from coverage bad checks accepted in payment for beer sold to business owned by insured distributor's local manager after other checks drawn on same business for beer previously sold had been returned marked "insufficient funds".
Headnotes as approved by Rodgers, J.
APPEAL from the Circuit Court of Lowndes County; JOHN D. GREENE, Judge.
Carlisle Carlisle, Columbus, for appellant.
I. The verdict was contrary to the overwhelming weight of the testimony and evidence.
II. The Court erred in refusing to admit into evidence cash sales tickets and sales summary sheet covering the period the loss occurred. Meridian Star v. Kay, 211 Miss. 536, 52 So.2d 35; Yarbrough v. Armour Co. (Ala.), 15 So.2d 281; Anno. 83 A.L.R. 817; 20 Am. Jur., Evidence, Secs. 1049, 1075.
III. The Court erred in refusing to grant appellant's instruction concerning the construction of the terms of the insurance contract. Lumbermens Mutual Cas. Co. v. Broadus (Miss.), 115 So.2d 130; Penn v. Commercial Union Fire Ins. Co. of N Y, 233 Miss. 178, 101 So.2d 535.
IV. The Court erred in refusing to grant appellant's Instruction No. 7 that under the law of this State an act or action of a person may not amount to a violation of the criminal laws of this State.
William J. Threadgill, Dewitt T. Hicks, Jr., Columbus, for appellee.
I. A fraudulent or dishonest act within the purview of the bond does not include a mere indebtedness owed by an employee to his employer. Hartford Acc. Indem. Co. v. Hattiesburg Hardware Stores (Miss.), 49 So.2d 813; Orion Knitting Mills v. United States F. G. Co., 137 N.C. 565, 50 S.E. 304; 50 Am. Jur., Suretyship, Sec. 335.
II. Where the provisions of an insurance contract are plain and unambiguous, it should be construed as written like any other contract. Brotherhood of Railroad Trainmen v. Bridges, 164 Miss. 356, 114 So. 554; Continental Cas. Co. v. Hall, 118 Miss. 871, 80 So. 335; Farmers Mutual Ins. Assn. v. Martin, 226 Miss. 515, 84 So.2d 688; Georgia Cas. Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73; Griffin v. Maryland Cas. Co. 213 Miss. 624, 57 So.2d 486; National Bankers Life Ins. Co. v. Cabler, 229 Miss. 118, 90 So.2d 201.
III. Concealment or misrepresentation as to previous defalcation of one for whom fidelity bond is sought releases the surety from liability on the bond. Aetna Ins. Co. v. Fowler, 108 Mich. 557, 66 N.W. 470; Alabama Fidelity Cas. Co. v. Alabama Penny Sav. Bank, 200 Ala. 337, 76 So. 103; Charles W. Schreiver Travel Bureau v. Standard Surety Cas. Co., 240 App. Div. 279, 269 N.Y.S. 804; Dominion Trust Co. v. National Surety Co., 221 Fed. 618; Guarantee Co. of N.A. v. Mechanics' Sav. Bank Trust Co., 183 U.S. 402; McIntosh v. Dakota Trust Co. (N.D.), 204 N.W. 818; Roseville Trust Co. v. National Surety Co., 95 N.J.L. 138, 112 A. 337; Supreme Ruling, F.M.C. v. National Surety Co., 114 App. Div. 689, 99 N.Y.S. 1033; Anno. 40 A.L.R. 1036; 50 Am. Jur., Suretyship, Sec. 328.
IV. There was no error in the lower court proceedings.
The appellant, H.C. McGee, is a resident of the State of Alabama and operates a wholesale beer distributor's business with an outlet at Columbus, Mississippi, and a branch outlet at Holly Springs, Mississippi. Mr. Marvin Cash is the manager for appellant at Columbus and Mr. Charles T. Goodwin was manager of the Holly Springs warehouse and was paid a commission of thirty cents per case for beer sold. Mr. Goodwin was authorized to sell to customers for cash and credit. One of the customers of the Holly Springs establishment was a place of business known as Joe's Place, which was owned by Charles T. Goodwin but was managed by Joe Clark. Joe Clark paid for the beer by checks written on Joe's Place and some of these checks were marked "insufficient funds", and some of them were redeposited and finally paid. Suit is here brought for $2,942.74 evidenced by checks given on Joe's Place and one given by Charles T. Goodwin.
The suit is based upon a bond purchased from Maryland Casualty Company on August 7, 1958. The application for the bond set up the name of Charles T. Goodwin as an employee. The pertinent parts of this bond are the following paragraphs:
"INSURING AGREEMENT. The Underwriter, in consideration of the payment of the premium, and subject to the Declarations made a part hereof, the General Agreements, Conditions and Limitations, and other terms of this Bond, agrees to indemnify the Insured against any loss of money or other property which the insured shall sustain through any fraudulent or dishonest act or acts committed by any of the Employees, acting alone or in collusion with others, to an amount not exceeding in the aggregate the amount stated in Item 3 of the declarations. * * *
"EXCLUSION. Section 2. This Bond does not apply to loss, or to that part of any loss, as the case may be, the proof of which, either as to its factual existence or as to its amount, is dependent upon an inventory computation or a profit and loss computation; provided, however, that this paragraph shall not apply to loss of money or other property which the insured can prove, through evidence wholly apart from such computations, is sustained by the Insured through any fraudulent or dishonest acts committed by any one or more of the employees. * * *
"PRIOR FRAUD, DISHONESTY OR CANCELLATION. Section 6. The coverage of this Bond shall not apply to any Employee from and after the time that the Insured or any partner or officer thereof not in collusion with such Employee shall have knowledge or information that such Employee has committed any fraudulent or dishonest act in the service of the Insured or otherwise, whether such act be committed before or after the date of employment by the Insured."
The manager M.E. Cash examined the reports of Mr. Goodwin and took the checks above mentioned. Mr. Goodwin is said to have admitted that he did not have funds to cover these checks. Mr. Cash later returned to Holly Springs and had the checks marked "insufficient funds". The plaintiff claims that the giving of these checks on Joe's Place was covered under the terms of the bond. The case was submitted to a jury and the jury returned a verdict for the defendant Maryland Casualty Company.
(Hn 1) The appellant H.C. McGee offered in evidence certain cash sales tickets which were first admitted by the court in evidence and finally the court reserved its ruling on objection made to the introduction of the tickets. It is the well settled law that reports made by an agent in line of duty are admissible in evidence. 20 Am. Jur., Evidence, Sec. 1049; 83 A.L.R. 817; Meridian Star v. Kay, et al, 211 Miss. 536, 52 So.2d 35. (Hn 2) The appellant, however, did not request the court to finally rule upon the reserved ruling, and the court cannot therefore be charged with error on appeal. (Hn 3) Where objection is made to evidence and the court reserves its ruling, the objector will be deemed to have waived his objection unless he request a ruling thereon before the case is submitted to the jury. And it was also the duty of the appellant to bring the judges "reserved ruling" to the attention of the trial judge. W.L. Holcomb Inc. v. City of Clarksdale, 217 Miss. 892, 65 So.2d 281.
The appellant charges that several instructions granted to the defendant were erroneous, but we do not find any errors in these instructions nor in the instructions refused the appellant, since the court should have granted the request for a directed verdict for the defendant.
(Hn 4) We have carefully examined this record and are of the opinion that the bond above mentioned does not cover "loss of inventory" and that the checks mentioned were given for beer sold to Joe's Place and is an item of indebtedness rather than a loss by fraud or dishonesty. Oron Knitting Mills v. U.S.F. G. Co., 137 N.C. 565, 50 S.E. 304; 50 Am. Jur., Suretyship, Sec. 335; Hartford Accident Indemnity Co. v. Hattiesburg Hardware Stores, Miss. 49 So.2d 813.
(Hn 5) The indemnity bond began at "noon August 7, 1958" and before that time previous checks had been marked "insufficient funds" on Joe's Place. If the checks in this case can be said to be deemed fraudulent or dishonest, then the appellant had notice of previous bad checks on Joe's Place and previous "defalcations" by its employee Goodwin. The bond expressly states "this bond shall not apply to any employee from and after the time that the insurer * * * shall have knowledge or information that such employee has committed any fraudulent or dishonest act in the service of insured or otherwise." If, therefore, the last checks could be considered fraudulent or dishonest acts of an employee the first checks were also fraudulent and dishonest acts and the last checks given are expressly excluded by the terms of the bond. 50 Am. Jur., Suretyship, Sec. 328; 40 A.L.R. 1036; McIntosh v. Dakota Trust Co., 204 N.W. 818; Roseville Trust Co. v. National Surety Co., 95 N.J.L. 138, 112 A. 337.
The defendant's motion for a directed verdict should have been sustained. The case will therefore be affirmed.
Affirmed.
McGehee, C.J., and Arrington, Ethridge, and McElroy, JJ., concur.