177 Mich. 231 | Mich. | 1913
The Grand Rapids, Grand Haven & Muskegon Railway Company held the bond of the plaintiff company, conditioned that certain employees of the railway company—
“Shall faithfully and honestly discharge their duties in the several capacities, and shall also faithfully and truly account for all moneys and property, and other things, which may come into their possession in their respective employments, whenever thereto required, * * * and the company hereby indemnifies the employer against all loss which .the employer shall sustain, by reason of the default of any or either of the employees in the premises. * * * ”
One Marshall Maile desired to. enter the employ of the railway company as one of the class of employees whose conduct was so insured by plaintiff and was required to himself give to plaintiff an indemnity
The condition of Maile’s bond was that the obligors therein—
“Shall hold and keep harmless the company [the plaintiff] from and against any and all loss, damages, costs, charges and expenses * * * which the company shall, or may, at any time, sustain, incur, or be put to, for, by reason, or in consequence of the company having given and executed the said bond, or any continuations thereof. * * * ”
The obligors' further agree—
“To waive all notice of any defaults, or any other act or acts, giving rise to any claim under said bond of suretyship given by said company to said employer, * * * to the end and effect that we shall jointly and severally be and remain liable to the company under this bond whenever the company is liable under its said bond, * * * notwithstanding also any defenses of any kind that we might have been or be entitled to make.”
This is the bond sued upon, and it was made to appear that the plaintiff had paid the railway company, on account of the default of Maile, $141.50. With their pleas the sureties gave notice that they would show in their defense that their liability was limited to the sum of $27.26, “for the reason that one of the provisions of said bond,” the one given by plaintiff to the railway company, “reads as follows, viz.: ‘That this bond will become void as to any claims which may arise subsequent to the occurrence of any act or default on the part of the employee, which may involve a loss for which the company is responsible hereunder, to the employer, if the em
It appeared that Maile was the agent of the railway company at Nunica from April 10, 1910, until October 3, 1910, and that, following the custom and the requirements of the company, . he reported monthly to the accounting department of the road the business transacted by him. His report for July, 1910, was examined and four debit and three credit errors discovered; the balance of errors in favor of the railway company being $27.26. This was reported to Maile with the statement:
“You will on your next balance sheet debit yourself with $27.26 for balance of errors above. Balance to be carried to your debit next month.”
The communication is dated September 5, 1910. In the month of October, 1910, upon an audit being made of the books kept at Nunica, it was discovered that Maile owed the company $161.50, including the item of $27.26 already referred to. His shortage for September was $133.87. Of this condition the plaintiff was notified in writing October 4, 1910. Later Maile pleaded guilty to an information which charged him with embezzling $161.50.
Appellants’ principal contention is based upon the fact that the railway company did not report to the
To sustain this contention it must be held that the bond given by plaintiff to the railway company required the railway company to notify plaintiff that Máile’s July statement, as corrected by the accountant, showed that he should have reported and paid $27.26 more than he did report and pay. The testimony discloses, and is not disputed, that similar errors were not infrequently discovered in the reports of agents, called to their attention and corrected in the next succeeding statement; that it was supposed that Maile had simply made an error; and that dishonesty on his part was not suspected. Maile paid over all that his July account called for. His act in making up the account as he did and in remitting accordingly was apparently a mistake — an error. Undoubtedly, if he had not paid the amount found to be due upon the correction of his account, a claim for that amount.would have arisen upon the bond. It was not, however, to be assumed that Maile was dishonest. He was entitled to. opportunity to reexamine his records and to correct the corrections made by the accountant, if he could do so. The language of the condition of the bond given by plaintiff to the railway company is:
“That immediately upon, or as soon as practicable after, the discovery by the employer of any act of any employee giving rise to a claim under this bond, the employer shall give notice thereof to the company” — with the further provision that the bond will become void as to any claims arising subsequent to the occurrence of any act or default on the part of
Error is assigned upon portions of the charge of the court which are in agreement with the conclusion just stated. It is said, in argument, that, if the instructions complained about were correct, in another portion of the charge a precisely contrary instruction was given; that therefore the jury was per
In the brief for appellants it is urged that incompent testimony was introduced to show that a shortage greater than the sum of $27.26 existed. The argument is made in> support of the first assignment of error, which is based upon an exception to a ruling which permitted a witness who had testified that he examined the books and records kept at, and relating to business done at, Nunica station to answer the question, “State to the jury what you found.” The objection was that the testimony sought was incompetent, irrelevant, and - immaterial. Although the reasons for the objection were stated at considerable length, they did not point out why the testimony was incompetent. And at no time was the attention of the court directed to the point that the method adopted to prove the extent of Maile’s shortage was not a proper method. It is now said that the testimony was incompetent because—
“The witness was simply allowed to testify that he checked up accounts without having anything to check up from or show to the jury or the court wherein he got his items, one way or the other, from which he made up this amount of $161.50.”
The books -and papers referred to were admitted in evidence, without objection. It was with reference to their contents and the examination he had made of them that the witness was testifying. He was not cross-examined. The objection now made is without merit, and no proper foundation for it appears in the record.
The judgment is affirmed.
