Larrimore v. United States Fidelity & Guaranty Co.

LENNON, P. J.

In this action the plaintiff sued for and recovered a judgment against the defendant in the sum of one thousand dollars upon a policy of fidelity insurance, which was issued to the plaintiff by defendant as security for the integrity of one Charles A. Martinella, an employee of plaintiff. The case was tried with a jury and a verdict rendered in favor of the plaintiff. Upon motion of the defendant the lower court ordered a new trial, from which the plaintiff has appealed.

The motion for the new trial was made upon all of the statutory grounds, and the order granting it is general in its terms.

It is not disputed that the order appealed from must be sustained if it can be justified upon any one of the grounds enumerated- in the motion for a new trial; but appellant insists that the record does not show a single statutory ground by which the order granting a new trial can be supported.

One of the grounds of the motion was the insufficiency of the evidence to support the verdict and judgment; and we are satisfied that upon that ground alone the lower court was justified in granting the new trial.

As a defense to the action the defendant specifically pleaded a breach of certain warranties contained in the bond. The evidence, briefly stated, shows that the plaintiff was engaged in the parcel delivery business. As the assignee of a contract with the firm of Weinstoeb, Lubin & Co. he was employed by that firm to deliver parcels of merchandise to its customers in the city and county of San Francisco. Martinella, who was designated as the principal in the contract of insurance, was employed by plaintiff as a foreman of delivery, and was assigned for duty with the firm of Weinstoeb, Lubin & Co. In the course of his employment he embezzled a sum in excess of one thousand dollars from moneys which he had collected for goods delivered by him or under his direction. Plaintiff’s written application to the defendant called for a “bond of security” for Martinella while in the service of the plaintiff

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at the firm of Weinstock, Lubin & Co.; and this application contained certain warranties by the plaintiff in the form of questions and answers which, by stipulation of the parties expressed in the application, were made the basis of the bond as finally issued. The plaintiff in this application among other things expressly warranted that Martinella would account “to the cashier of Weinstock, Lubin & Co. once a day,” and that such account would be verified every day “by checking with cashier of Weinstock, Lubin & Co.”