*1 not have been permitted under the testimony same. Such was, in our opinion, is true that improper prejudicial. the order Oxner, not, Judge to, above referred did out certain striking allegations, use this specifically language; but, as view order, we it Oxner’s was .the Judge certainly and intent purpose of the same to the introduction prevent the line testimony along objected to the defendant on the trial. think We trial error al- Judge as to of the lowing testimony the force and effect rules and by-laws said New York Exchange. Stock We again call attention to the fact there was no from appeal Judge Oxner’s order and the are hereto bound parties thereby.
Under our view case to consider unnecessary exceptions of remaining appellant. It is therefore the Court judg- be, ment of the lower and the same is hereby, re- versed, and the case remanded trial. new Mpssrs. ChiPP Stabler Bon- ham, Eisi-iburnP BakPr
14054, 14128 BANK PLANTER’S OF GREER SAVINGS AMERICAN SURETY OF CO. NEW YORK (181 223) *2 Lyles Daniel,
Messrs. appellant, & for- Carlisle, Brown Carlisle, respondent, & 27, 1935. April delivered by of the H. Mr. Wm. Acting
Grimball, Associate Justice. This cause is a suit on what called a “Bankers’ Blanket Bond,” bank, which was issued by appellant and which covered certain of respondent’s employees, cluding vice-president. Those bond portions perti- nent to the issues on this are as follows : appeal 1. The American York,
“Section Surety Company New York, corporation of New with its State home office in the City York, New New York, hereinafter called the underwriter, in consideration of an annual premium agrees Greer, indemnify Bank, Planters Savings South Carolina, hereinafter called insured, against direct sustain- ed while bond is in force discovered as hereinafter provided, securities, or any money both, as defined in *3 5 hereof, Section in which the insured has a pecuniary terest, held collateral, or insured as or as bailee, trus- tee or agent, whether or the insured not is liable therefor (such money securities hereafter called being property) in an amount not exceeding Twenty-Pive Thousand and Dollars as follows: ($25,000.00) No/100 act, dishonest Through any committed, “A. wherever as defined in employees, hereof, Section 6 * * * whether in acting alone or collusion with others. “Sec. 16. This bond subject following express conditions: not moment,
“At at all the earliest events practicable later ten discover any than after the insured shall loss days, notice hereunder, shall the underwriter give insured addressed to at thereof letter telegram, by registered also, after office, its home and shall within three months such at home office furnish to the underwriter discovery, full affirmative with proof particulars.” this bond brought On suit against in the surety company County Spartanburg County Gibson','its for an shortage on the one alleged part of E. J. in sum certain with together vice-president, $1,314.61, The record items of shows that surety company interest. n had under the terms of the bond the sum of $18,401.41 paid 18, 1932, on December 6, 1932, on October also $211.12 had for the items sum making denied liability up but in a Trial resulted for which this suit was commenced. ver- sum dict for the bank against surety company for to- the total amount sued of $1,964.61, aggregating with the interest items. gether and from the to the jury is from the charge This appeal trial. a motion for a new oredr refusing charged that 'in that the were assigned Error an able furnish affirmative must be. to “plaintiff find finds, he and until that you loss that of any proof his claim under the to had sufficient information justify he as to to affirmative so be enabled by furnishing proof bond collect, is not but bond breached; then until the bond find believe breached until from you you is not facts showing was able comply by them be the plaintiff of the breach of bond.” affirmative proof effect, left charge, error charges Appellant as when notice the discretion of it within defendant, claim and when the should should be given of the bond made it filed; whereas, imperative the terms be discovery after date of within that notice be given ten the date from ninety days claim be filed within *4 of discovery. statement that before the above shortly
The record shows that shortage com- any trial the Judge charged the of must come within the terms the of plained is, act wherever com- bond; dishonest through any as defined in this bond. mitted of of any employees if found a he, shortage, said “that there is “I charge you,” with, further of this bond must be complied the provisions at the earliest must to the company in that ‘it be reported later than ten moment, days all not at events practicable hereunder, after the shall discover loss insured sured shall the underwriter give notice thereof by registered ” letter telegram, it at addressed to its home office.’
We are of the as whole a charge correctly stated the of law involved and that this principles exception should be dismissed. is made to the inclusion in the
Exception aof certain item the sum It of seems that $354.12. in March, 1931, the bank examiner’s contained report item: following “Shortage chjarge $354.12.” —cash — And the record shows that Gibson, the vice-president, E. J. inwas charge account, control cash and that of this was a shortage against him. .At that time the bank chargeable made no report appellant bonding company, claiming to have no reason to think that this involved any shortage on the of its dishonesty render part vice-president, so it a error, loss covered the bond. was considered as an and was entered as an on a blotter the bank “outage” kept by for the and short carrying items that purpose long total, occurred from time to time made variable aup and if error, due to corrected themselves in course generally of time. 25, 1932, bank
Finally examiner made January bank, another audit examination revealed that Gibson was short in the sum of $19,977.72, including cash The bank shortage notice under the gave $876.02. terms of the bond on February 1932.
We are that the bank is not en- titled inclusion item of this nor of in- $354.12 terest thereon judgment against appellant bonding company.
The bond that in case should provides discover a loss caused the dishonest act an that it employee, at moment, shall the earliest and at all practicable events not later than ten after the of such discovery give notice thereof. bonding company
368 If are complied its terms is reasonable.
This provision instance, banks and bonding companies both every with.in if not losses; minimizing by would gain probably with, thereby. be losers would both probably complied upon under this bond recovery dependent The right Bank, etc., Indemnity this condition Wachovia precedent, Co., Circuit Court Appeals). (Fourth F. (2d), the result of hand, item of
If, this one $354.12 upon inquiry bank put Gibson’s dishonesty, March, 1931, “Shortage— bank report: in examiner’s by this The no attention cash bank charge paid $354.12.” — An investigation notice in the bank report. examiner’s the shortage. would revealed the cause of undoubtedly have by this investigation was entitled to bonding The company and to loss caused dishonesty. notice of any hand, If, was the result item of on the other this $354.12 error, dishonesty, not caused of some harmless liable. is of course not bonding company judg- of this Court is therefore the judgment modified, as herein expressed, ment the Circuit Court be and in other be affirmed. Mr. Chiee Stabeer Justice Acting Mr. Associate Bonham
Carter Justice G. B. Greene August Rehearing 13, 1935 For
On Petition Bonham : 27, was filed April this Court this case An opinion was modi- which the Circuit judgment in- The judgment Circuit Court fied in this viz.: particular, interest thereon. an item cluded of $354.12 Court, of the lower judgment of this Court affirmed the it said: “We are which particular, regard save bank is not entitled that the respondent thereon, in of interest $354.12, clusion of this item of nor bonding company.” appellant against *6 369 The is, Court judgment these “It was words: therefore, the of this that the judgment Court judgment of the Circuit Court be herein modified, as and expressed, in other it is affirmed.” respects 2, 1935,
May a the filed rehearing petition other alleging, among that: “That things, the Supreme Court in the the with- modifiying judgment of lower Court out the of a trial nisi granting option new to over- looked that this a law case in which the Court is without to the verdict the power change of without granting the affected party adversely the a new trial thereby option nisi.” order,
In a per curiam the granted Court petition the case was heard on at the June, 1935, term of rehearing the Court. The is satisfied with the heretofore Court opinion filed as to of the case except disposition made by wit, Court, announcement of the of the lower judgment that “the of the Circuit Court be modified as judgment herein expressed.”
The has Court no to add to or reduce the power found amount of a lower Court by judgment without affected giving party adversely thereby of a new trial. option This lately considered decided question fully by Court the case of Anderson Ætna Casualty & C., 254, Surety Co., 175 833. S.
Mr. Acting Associate in an Ramage, able opinion on the authorities, collated the rehearing, announced the unanimous of this in these Court words “Under : law, cited, as above under facts as developed case, in this we find has no increase power the amount found lower Court.”
We add that the same authorities that this may show Court has no reduce the amount found power Circuit Court. out striking is amended filed heretofore this Court therefore, is, judgment “It
the language, modified, Court be Circuit the judgment affirmed,” and other be herein .expressed, is the following: in lieu thereof the inserting unless respondent, that a new trial granted this Court filed in the office after the remittitur is within ten shall enter Court for County, Clerk of Spartanburg in this case remission the record of the judgment *7 If such the interest allowed thereon. sum of $354.12, entered, the the Circuit Court remission be in other affirmed. Chiee Stabler and Fisi-iburnE
Carter, Baker SPARTANBURG LOAN ASSOCIATION OF BUILDING & HOME v. COHEN (181 465)