City of Seaside v. Oregon Surety & Casualty Co.

Mr. Justice Bean

delivered the opinion of the court.

The defendant contends that the policy only guaranteed the honesty and integrity of Henninger as treasurer, and did not insure the repayment, of the fund to the city in any event or provide against technical or statutory larceny as is provided in Section 1957, L. O. L. The plaintiff contends that because of that section the defendant was liable upon the policy when the treasurer did not repay the sum received by him, and the trial court so ruled and charged that larceny as mentioned in the obligation of defendant included *629 the definition of larceny contained in Section 1957, L. O. L. At the close of plaintiff’s case counsel for defendant moved the court for a judgment of nonsuit which was denied. Defendant offered no evidence. A request was made that the court instruct the jury to return a verdict in favor of defendant, and also in accordance with defendant’s theory of the case. This was refused. These rulings are assigned as errors.

The charter of the City of Seaside required the city treasurer to give a bond with surety in the sum of $15,000, but did not provide the form nor detail the conditions of such obligation. Defendant urges that the instrument is not a bond as required by the charter, but has only the force of a common-law bond; that the defalcation of the city treasurer does not come within the terms of the bond in that the failure to account for or pay over the money in his hands belonging to the city does not constitute fraud or dishonesty amounting to larceny or embezzlement. This contention was disposed of upon the former appeal by the opinion of Mr. Justice Benson ( 80 Or. 345, 354 , 157 Pac. 152 , 153), where in anticipation of a new trial herein in expressing the view of this court as to whether the larceny defined in Section 1957, L. O. L., is covered by the language of the bond, the learned justice said:

“As we read this statute, it provides that when a public officer receives public moneys, the burden is upon such officer to pay the money to the party entitled thereto or to so account for it as to free his own shirts of dishonesty. Failing to do this, the animus furandi is a legitimate inference.”

1. We' reaffirm the terse and plain announcement made as a direction for the trial that has since been had in this cause wherein it was shown that as city treasurer, E. N. Henninger, received the sum of $7,949.09 be *630 longing to the plaintiff city and failed to pay the same to the plaintiff or to anyone for it or to account for the same in any manner. No evidence was offered tending to show that the public funds were lost or destroyed in any innocent way. No conclusion can be drawn from the facts in evidence except that the city treasurer was guilty of larceny of public money as defined by the statute. By the explicit terms of the obligation of the defendant company by whatever name the instrument may be called, the obligor is required to pay to the city the sum so lost by the dishonesty of its official. By the- recitation of the memorandum in writing it is apparent that it was executed with a view to conforming to the requirements of the city charter, and we think it is presumed that the statute of this state in regard to larceny of public money was also contemplated. Perhaps it may be said that the document is a kind of blanket agreement spread over a large area and was intended as a sort of “cure for all ills’ ’; yet when the pertinent part is sifted out of the verbiage we find that in consideration of the premium mentioned “it is hereby agreed and declared” that “the association shall within” the time specified

“make good and reimburse to the employer (the city) all and any loss sustained by the employer * * of money, securities, or other personal property in the possession of the employee, or for the possession of which he is responsible, by any act of fraud or dishonesty on the part of said employee in the discharge of the duties of his office or position as set forth in said statement referred to, amounting to larceny or embezzlement, and which shall have been committed during the continuance of this bond.”

The association shall not be responsible under this bond for more than $15,000. It seems to us that the *631 obligation is just as efficacious as though the usual words ‘ ‘ are held and firmly bound ’ ’ had been employed. The obligation of the association is plain. The written instrument shows that Henninger was treasurer of the city. The law fixes his obligations and it was unnecessary to detail the same in the bond. There was no error in denying the motion of defendant for a non-suit and refusing to direct a verdict for defendant.

It is contended by counsel for defendant that the Words of the contract “fraud or dishonesty amounting to larceny or embezzlement” mean the dishonest conduct of the treasurer, which is equivalent to larceny or embezzlement; that the contract “cannot mean conduct which does not involve a crime, nor does it involve a crime statutory or otherwise, in which there is absent the element of fraud or dishonesty.” This claim may be wholly conceded. It is only necessary to refer again to the law of this case as declared in the former opinion where it was held that the allegation of the complaint as to the violation of Section 1957 by the larceny of the city’s money constitutes fraud and dishonesty. The evidence in the case shows prima facie a crime on the part of Henninger. It has not been explained or refuted so “as to free his [Henninger’s] own skirts of dishonesty.”

In Rankin v. United States Fidelity & Guaranty Co., 86 Ohio St. 267 ( 99 N. E. 314 ), cited by defendant, the court had under consideration the terms of a bond precisely the same as those in this case. It was held that

“when the terms of a bond clearly indicate the intention of the obligor and obligee that there shall be an indemnity to the latter on account of the default of an employee, doubtful terms will be so construed as to effectuate rather than to defeat that intention.”

*632 It might he apropos to quote with suggestiveness of application from page 317 of that opinion, namely, that

“a decision in favor of the Guaranty Company upon this ground would imply that its business in this state consists in the collection of premiums.”

2, 3. The contention of defendant that the defalcation of Henninger did not amount to larceny under our statute is made upon the theory that he was cashier of the Bank of Seaside and deposited the city’s money in the bank and it failed. The evidence tended to show, however, and the jury found that Henninger as cashier received and disbursed the money- for the bank for a long time before it closed its doors; that but a small percentage of the money remained in the bank when Henninger committed suicide and that he had appropriated the same to his own use. The fact that the money passed through the vault of the bank would not render it not the subject of larceny. When Mr. F. S. Godfrey, receiver for the defunct bank, was on the witness-stand, for the purpose of showing that Henninger who was cashier of the bank and received and paid out all of its money was responsible for the wrecking of the bank, plaintiff’s counsel asked the witness: “How much money was in the bank at the time it closed its doors, if you know?” Upon objection of counsel for defendant as irrelevant the answer was excluded. Thereupon counsel for plaintiff offered to prove by the evidence and stated that the witness would testify that at the time he was appointed receiver of the Bank of Seaside and took charge of it, which was very shortly after and within two days after E. N. Henninger committed suicide, there was less than $500 in the bank vaults; that the bank had received on open accounts deposits aggregating $70,000, *633 and was indebted to that amount at tbe time tbe bank was closed. Upon objection of defendant’s counsel the tender of tbe evidence was rejected. Under tbis state of tbe record tbe defendant as Henninger’s sponsor, cannot claim any advantage by contending that tbe evidence shows that tbe money in question was paid to Henninger at tbe bank and that be deposited it in tbe bank or that tbe loss was occasioned by tbe failure of tbe bank. Tbe evidence in regard to tbe transaction at tbe bank having been kept from tbe jury at tbe solicitation of defendant we are of tbe opinion that that feature of tbe case is not before tbis court. If there was any error in tbis respect it was invited by tbe defendant and it cannot complain: Caldwell Bk. & T. Co. v. Porter, 52 Or. 318, 331 ( 95 Pac. 1 , 97 Pac. 541 ); State v. Ryan, 56 Or. 524 ( 108 Pac. 1009 ). It is claimed by defendant that tbe court erred in giving: tbe following instructions to tbe jury:

4. “Larceny is ordinarily defined to be tbe taking and carrying away of tbe property of another with intent to convert it to your own use. But tbe statute of tbe state has a further definition of larceny. Section 1957 provides: ‘If any person shall receive any money whatever for tbis state, or for any county, town or other municipal or public corporation therein, or shall have in bis possession any money whatever belonging to such state, county, town or corporation, or in which such state, county, town or corporation is interested, and shall in any way convert to bis own use any portion thereof, or shall loan, with or without interest, all or any portion thereof, or shall neglect or refuse to pay over any portion thereof as by law directed and required, or when lawfully demanded so to do, such person shall be deemed guilty of larceny.’ Tbe word ‘larceny’ as used in this bond means not only its ordinary acceptation of taking and carrying away, what we commonly call stealing, but it also includes tbe meaning given by tbis statute.”

*634 The instruction correctly states the law of this state as applied to the facts in this case and is approved. The judgment for the principal amount, $7,174.09, is affirmed.

5. The court eliminated from the judgment the amount of interest, $2,606.50, as found by the verdict and plaintiff appeals from that part of the judgment. There are two ways only in which interest may be collectible: (1) By contract to pay interest; and (2) by statutory authority. In the present case the claim is made by virtue of the latter, namely, Section 6028, L. O. L., as it was prior to the amendment by Chapter 358, Laws of 1917. In the case of Holtz v. Olds, 84 Or. 567, 581 ( 164 Pac. 583, 1184 ), the rule in Baker County v. Huntington, 48 Or. 593, 603 ( 87 Pac. 1036 , 89 Pac. 144 ), was reaffirmed. This rule has stood too long to be disturbed otherwise than by legislation. The Baker case like the present one was for the enforcement of the collection on an official’s bond on account of the defalcation of that officer. The ruling in that case precludes the recovery of interest by plaintiff. The bond in suit is not for a liquidated amount, but provides for a penalty or indemnity. The amount in so far as the liability of the defendant is concerned was not ascertained, fixed or agreed upon in any way until the judgment herein was rendered. • Until then as to the defendant the amount due was unliquidated. A bona fide contest of the right to recover was made. The bond does, not stipulate for the payment of interest. On the contrary it provides for a certain time of payment after proof of loss. For different phases of the question see Sorenson v. Oregon Power Co., 47 Or. 24 ( 82 Pac. 10 ); Richardson v. Investment Co., 66 Or. 353 ( 133 Pac. 773 ); Templeton v. Bockler, 73 Or. 494, 507 ( 144 Pac. 405 ); Schade v. Muller, 75 Or. 225, *635 233 ( 146 Pac. 144 ); Sargent v. American Bk. S Trust Co., 80 Or. 16, 39 ( 154 Pac. 759 , 156 Pac. 431 ); Carlton Lumber Co. v. Lumber Ins. Co., 81 Or. 396 ( 158 Pac. 807 , 159 Pac. 969 ). The judgment as to interest is affirmed.

6. Over the objection of defendant the trial court allowed plaintiff’s disbursements incurred upon a previous trial of the case. This is assigned as error. This raises the question as to costs and disbursements upon a former trial of the cause when the verdict was returned in favor of defendant and on motion of plaintiff set aside. It is urged by counsel for defendant that the matter is governed by the rule announced in Wade v. Amalgamated Sugar Co., 71 Or. 75, 77 ( 142 Pac. 350 ), where Mr. Chief Justice McBride remarked that “there is a dearth of authority on this subject, and plausible arguments may be urged on either side.” The common-law rule that “where after a reversal a party again recovered judgment, he could recover only the disbursements of the last trial” was adopted. The basis of this rule is that as the party erroneously obtained the former judgment he is not entitled to disbursements incurred upon such previous trial. In- the present case we have the reverse as defendant secured an erroneous decision upon the first trial which was reversed by the trial court and the granting of a new trial was affirmed upon appeal on account of an erroneous charge to the jury. Plaintiff was compelled to have its witnesses in attendance upon such trial; otherwise judgment would have gone against it beyond recall. The prejudicial errors of the first trial were not the fault of plaintiff. The plaintiff having recovered a judgment for $7,174.09, the question now presented under Section 566, L. O. L., which provides that “a party entitled to costs shall also be allowed for all *636 necessary disbursements” is: Were the disbursements of plaintiff upon.the former trial necessary? The trial court found that they were and such ruling should be upheld.

7, 8. The court denied defendant’s objection to the allowance of double mileage at ten cents per mile for witnesses residing and served with a subpoena in Clatsop County who attended by order of the court. Defendant contends that such witnesses are entitled to only ten cents per mile in accordance with Section 3145, L. O. L., which provides:

“Every officer or person whose fees are prescribed in this title who shall be required to travel in order to execute or perform any public duty, in addition to the fees hereinbefore prescribed, shall be entitled to mileage at the rate of ten cents per mile in going to and returning from the place where the service is performed; provided, however, that in counties containing more than fifty thousand inhabitants, jurors and witnesses shall be entitled to such mileage at the rate of five cents per mile and no more in so going and returning. ’ ’

Counsel for plaintiff contend that witnesses living in a county where ten cents a mile is allowed by statute should be allowed the larger rate for attendance upon court in a county where the lesser rate prevails. While there may be reason to regret the want of uniformity of the enactment it is a legislative question in which various conditions such as transportation facilities and other metropolitan environments are taken into account by the legislative mind. A litigant submitting himself to the jurisdiction of a court in either class of counties is bound by the law applicable to that county. The law applies to all citizens alike and is not inimical to Article I, Section 20, of the Constitution. Plaintiff’s1 witnesses subpoenaed 'and or *637 dered to attend court from outside of Multnomah County should he allowed double mileage at the rate of five cents per mile or ten cents per mile.

The judgment of the lower court as to the taxation of costs will therefore be corrected so as to allow plaintiff for the Clatsop County witnesses ten cents double mileage instead of twenty cents. In all other respects the judgment is affirmed.

Affirmed, Except as to Costs.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice McCamant concur.