Plyler, Rec'r v. U.S.F. G. Co. , 144 S.C. 105 ( 1928 )

March 5, 1928. The opinion of the Court was delivered by This action was commenced by service of summons and complaint on July 14, 1926. The action is by the receiver of Industrial Loan Investment Corporation against the defendant on a fidelity bond issued by defendant to said investment corporation to indemnify it against loss occasioned by any fraudulent, dishonest, or criminal act or acts of F.G. Bunker as secretary and treasurer of the corporation. The plaintiff claims that on January 15, 1925, while the bond was in effect, Bunker appropriated to his own uses $2,762.92 out of the funds of the corporation and that defendant is liable for said sum on said bond. The defendant interposed three defenses. One was a general denial; and another, that under the terms of the bond defendant was entitled to be notified of loss within 10 days after discovery, and that such notice had not been given. The third defense was that as a part of the contract under which the bond was issued the corporation had agreed to do certain things which were by the contract made conditions precedent to any recovery on the bond, and that these acts and things had not been done. Under this defense the defendant claimed that the corporation had breached its agreement: (a) By failing to require that all checks issued by Bunker on behalf of the corporation should be countersigned by the president; (b) by failing to have the accounts of Bunker examined as specified at intervals; (c) by allowing him to retain custody of larger sums of money than was agreed upon; (d) by failing to instruct the banks with which the corporation did business not to honor checks signed by Bunker except when countersigned by the president; and (e) by the failure of the board of directors to require a monthly accounting from Bunker as to his handling of the funds, stocks, and other securities and assets of the corporation.

The case was tried before Judge De Vore and a jury at Greenville, S.C. on February 14, 1927. At the close of plaintiff's testimony defendant moved for a nonsuit upon grounds hereinafter set forth, and the motion was refused. A similar motion was made for a directed verdict at the conclusion of all the testimony, which likewise was refused. The jury returned a verdict in favor of the plaintiff for the sum of $2,762.92. A motion for a new trial was noted upon the minutes, but, on account of the illness of the presiding Judge, was not argued. The case is here on alleged error in refusing to grant the motion for a directed verdict and for alleged errors in the charge.

The exceptions, 19 in number, challenge the alleged errors of his Honor in not directing a verdict for the defendant, in charging plaintiff's request, in refusing to charge certain requests of the defendant, errors in the Judge's charge to the jury, and in settling the case for appeal.

The exceptions to his Honor settling the case for appeal are overruled as being without merit.

The exceptions as to directing a verdict are overruled under the cases of Powell v. Insurance Co., 97 S.C. 375;81 S.E., 654; Scott v. Insurance Co., 102 S.C. 115;86 S.E., 484; Ward v. Insurance Co., 115 S.C. 53;104 S.E., 316; Cope v. Insurance Co., 134 S.C. 532;133 S.E., 440; State Agricultural and Mechanical Societyv. Taylor, 104 S.C. 167; 88 S.E., 372; Norris v. InsuranceCo., 57 S.C. 358; 35 S.E., 572; Pearlstine v. InsuranceCo., 70 S.C. 75; 49 S.E., 4 and Rawl v. InsuranceCo., 94 S.C. 299; 77 S.E., 1013; 45 L.R.A. (N.S.), 463, Ann. Cas., 1915-A, 1231.

An examination of the Judge's charge as a whole will show that the principle of law as stated by him was correct and pertinent to the issues as made by the pleadings and evidence, and we see no error as complained of.

All exceptions are overruled and judgment affirmed.

MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.

MR. JUSTICE COTHRAN did not participate.