Auchincloss v. United States Fidelity & Guaranty Co.
The plaintiffs are stockbrokers having offices in the city of New York. The defendant is a surety company engaged in writing fidelity and surety bonds. On September 3, 1918, the defendant executed a fidelity bond, upon payment of a premium, based upon the total number of the “ insured’s officers, clerks and other employees, employed at the insured’s offices covered hereunder.” The bond contained a list of the plaintiffs’ offices and the names of the employees severally employed therein. The bond also provided “ all the officers, clerks and other employees employed at the offices covered hereunder during the currency of this bond being hereinafter referred to as employees.” By the bond the defendant undertook and agreed to indemnify and save harmless the plaintiffs against
Subsequent to the execution of the bond the plaintiffs’ cashier telephoned to the New York District Telegraph Company (hereinafter referred to as the Telegraph Company) and asked it to send them a messenger, nothing being said as to the services desired of the messenger, or the length of time he was to be used. In compliance with this request the Telegraph Company sent to the plaintiffs William Lane, a man about forty years of age, who wore no uniform. (None of the Telegraph Company's, messengers wore uniforms.)
This was the first time the plaintiffs had utilized the services either of the Telegraph Company or Lane. Lane on that day, and for several days thereafter, performed certain messenger duties for the plaintiffs in such a satisfactory manner that the plaintiffs’ cashier directed him to report to the Telegraph Company that the plaintiffs desired his services regularly. Thereafter, on each business day, Lane reported at the office of the Telegraph Company and was sent by the Telegraph Company to the plaintiffs’ office, which he reached about nine-thirty in the forenoon, and where he presented to the plaintiffs’ cashier a slip, given him by the Telegraph Company, which had on it the Telegraph Company’s name, the messenger’s number, the hour called, which was stated at nine-thirty, blanks for the hour he returned and for the charge for such services. On each of these days Lane remained on duty at the plaintiffs’ offices until such time as his services were no longer required. Lane, while at the plaintiffs’ offices, performed such miscellaneous duties as the plaintiffs required, being from the time of reporting until the time of his dismissal entirely under the direction and at the service of the plaintiffs, subject always to the primary right
On January 31, 1919, the plaintiffs delivered to Lane certain securities to be substituted for other securities (Liberty bonds and stocks) which were pledged with a certain bank and a certain firm of bankers, as collateral to loans; and in accordance with the practice among bankers the plaintiffs delivered to Lane a substitution order requesting the bankers to release those securities and substitute in their place the ones presented. Lane presented to the bankers the securities and order and received from them $7,000 par value of “ Liberty bonds ” but did not take the stock, stating that he would call again for it. He presented the securities and order to the bank and received $3,000. par value Liberty bonds from it. He did not report back to the plaintiffs and never made delivery of the said Liberty bonds to plaintiffs nor have they since discovered any trace of him or of the bonds, although diligent efforts have been made to do so. Plaintiffs gave due notice of their loss to the defendant on January 31, 1919, reporting the numbers of the bonds, and in all other respects complied with the terms of the bond.
The plaintiffs claim that Lane was their employee, in the sense in which that word is used in the bond and, therefore, that they sustained a loss of $9,666.40 (the market value of the Liberty bonds) directly covered by the bond.
The defendant on the other hand claims that Lane was not an employee within either the letter or spirit of the bond and
The sole question involved is whether Lane was an employee, within the meaning of the bond, for whose dishonest acts, causing loss to the plaintiffs, the defendant was responsible. The word “ employee ” is capable of very broad meaning and, therefore, is subject to restrictions and limitations arising from its use in conjunction with other words, or from the context of the contract or statute in which it appears. Strictly and etymologically it means a person employed, but in practice and as generally used it is understood to indicate some permanent employment or position. (Bouvier Law Dict. [Rawle’s Rev.] 672; Louisville, etc., R. R. Co. v. Wilson, 138 U. S. 501, 508.) In the bond in this case the word is used not to designate a person employed in the offices of the plaintiffs, but is limited to those who are the plaintiffs’ employees in their offices; that is, to those persons between the plaintiffs and whom the relation of employer and employee exists. That relation is contractual in its nature. One employs the other to do certain work or render certain service for which he actually or impliedly agrees to pay; and if he fails to do so, the employee can recover from the employer either the agreed wage or the reasonable value of the work performed or service rendered. Furthermore the employer hires and has the right to discharge, for cause, the employee. There was no contractual relation between the plaintiffs and Lane. The plaintiffs’ contract was with the Telegraph Company, whereby they were bound to pay an agreed sum for the services of a messenger. Lane’s contract was with the Telegraph Company whereby he bound himself for an agreed compensation to render services as a messenger. If Lane did not receive his pay for the services he rendered, he had no cause of action against the plaintiffs; and if plaintiffs were dissatisfied with Lane they could not discharge him. They could terminate the service that he was rendering to them but his contract with the Telegraph Company would still subsist in full force and effect. He would not thereby be deprived of his right to his compensation from the Telegraph Company. Lane reported every morning to the Telegraph Company and there received his directions to go to the plaintiffs’ office; and the fact that he returned to the
The learned counsel for the plaintiffs relies upon cases under the Workmen’s Compensation Law, and cases for personal injuries sustained through the negligent act of an employee
We are not authorized to extend the language used by the parties as defined and limited by the instrument itself to cover indemnity for the acts of others not strictly within its terms. (Richardson v. County of Steuben, 226 N. Y. 13, 19.)
We find that Lane was not an employee of the plaintiffs within the intent and meaning of the bond and grant judgment for the defendant against the plaintiffs, with costs.
Clarke, P. J., Dowling, Merrell and Philbin, JJ., concur.
Judgment ordered for defendant, with costs. Settle order on notice.