8. INSURANCE (§ 634*)-FIDELITY INDEMNITY BOND-PLEADING. In view of Mills' Ann. Code, § 66, providing that, in pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but that it shall be sufficient to state generally that the party duly performed all the conditions on his part, an allegation in a complaint on a fidelity indemnity bond that plaintiff had performed and complied with all the conditions of the bond was sufficient to show performance of a condition in the bond that suit could not be commenced thereon until after the expiration of three months from the time of giving notice and proof of loss. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 634.*] 9. EVIDENCE (§ 43*)-JUDICIAL NOTICE-IN STITUTION OF SUIT. The court will take judicial notice of the date of the institution of a suit, as it appears from the record or from the file marks on the papers. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*] 10. APPEAL AND ERROR (§ 909*)-REVIEWPRESUMPTION. Where, in an action on a fidelity indemnity bond, there was nothing in the record on appeal to indicate that suit was brought before the expiration of three months from the presentation of proofs of loss, in accordance with a provision in the bond, it will be presumed that the record disclosed to the trial court that the suit was not prematurely brought, especially in view of the fact that the trial court may take judicial notice of the date of the institution of the suit as it appears from the file marks on the papers in the case. Andrew W. Gillette and Henry H. Clark, for appellant. Waldron & Thompson, for appellees. WHITE, J. The appellees, who were plaintiffs below, brought this suit to recover from Pearl Mae Hayes and appellant the penalty named in an indemnity bond, executed and delivered by the latter to, and guaranteeing plaintiffs against loss occasioned through certain acts of Miss Hayes, their cashier and clerk. The bond obligated appellant to reimburse plaintiffs for any pecuniary loss by them sustained of money, securities, or other personal property in the possession of the employé, or for the possession of which she was responsible, by reason of any act of fraud or dishonesty upon her part, while in the discharge of the duties of her position, amounting to larceny or embezzlement, "and which shall have been committed during the continuance of this bond, or any renewal thereof, and discovered during said continuance, or within six months thereafter, or within six months from the death or dismissal, or retirement of the employé from the service of the said employer.” The complaint alleged, inter alia, the employment and duties of Miss Hayes, the execution and delivery of the bond, which was set forth, the renewal of the bond February 1, 1904, for the year ending [Ed. Note. For other cases, see Appeal and March 25, 1905, that Miss Hayes entered upError, Dec. Dig. § 909.*] 11. INSURANCE (§ 640*)-FIDELITY INDEMNITY BOND-TIME TO SUE-PLEADING. That a suit on a fidelity indemnity bond is prematurely brought, contrary to a provision in the bond, must be taken advantage of by defendant by a special plea. [Ed. Note.-For other cases, see Insurance, Dec. Dig. § 640.*] 12. INSURANCE (§ 640*)-MISREPRESENTATIONS -PLEADING. A false statement in an application for bond of indemnity, even if shown by the evidence, will not avail the defendant, unless it was pleaded as a defense. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1617, 1618; Dec. Dig. § 640.*] 13. APPEAL AND ERROR (§ 1071*)-HARMLESS ERROR-MODIFICATION OF REFEREE'S FIND INGS. Error of the court in modifying a finding by a referee is not ground for reversal where the finding related to a matter not embraced in the issues as presented by the pleadings. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1071.*] Appeal from District Court, City and County of Denver; Peter L. Palmer, Judge. Action by Harris A. Newton and another, doing business under the name of Newton's Collateral Loan Bank, against the United States Fidelity & Guaranty Company. From a decree modifying a referee's report and from judgment for plaintiffs, defendant appeals. Affirmed. on her duties under the employment, and after the execution of the bond took charge of moneys, goods, securities, chattels, effects, and property of the appellees, and continued in such employ until the 3d day of September, 1904, that between the 1st day of September, 1903, and the 3d day of September, 1904, while in the active discharge of her duties as specified in the bond, and during the existence thereof, she "did embezzle, take, steal, and carry away of the moneys, securities, goods, chattels, effects and property of these plaintiffs, and appropriate and convert the same to her own use, without the knowledge or consent of these plaintiffs, or either of them, moneys, securities, goods, chattels, effects, and property" to the amount and value of $2,451.30; that plaintiffs on or about the 13th day of January, 1905, and upon the discovery of the acts and conduct of Miss Hayes, notified defendant thereof in writing, and subsequently demanded of the latter payment of the loss sustained to the amount of the penalty named in the bond; that defendant refused payment thereof; that plaintiffs duly performed the conditions and requirements of them to be kept and performed by the terms of the bond. The prayer of the complaint is for judgment in the sum of $2.000, the penalty named in the bond. The answer admitted the formal allegations of ponderance of the evidence that the question the complaint, the execution, delivery, and and that plaintiffs had proven by a prerenewal of the bond, the notification and claim in writing of the alleged loss by embezzlement; denied, upon information and belief, the embezzlement alleged, claimed a variance in the notice given, claim made for loss, and bill of particulars filed, as to the dates of the alleged embezzlement and the values of the articles embezzled; denied that plaintiffs had performed the conditions and requirements to be by them kept and performed by the terms of the bond; denied that plaintiffs on or prior to March 1, 1905, demanded of defendant payment of, or that defendant refused to pay the amounts embezzled by the employé. A replication filed denied any new matter set forth in the answer. Thereupon the matter was referred to a referee to hear and determine all the issues, both of fact and of law, and to report the same to the court. The referee's findings of fact supported the allegations of the complaint. The report further recited substantially that, before the execution and delivery of the bond, the defendant company required of the plaintiffs a certain statement in writing, wherein the latter answered questions propounded by the defendant company concerning the nature and character of the position to be filled, and the duties to be performed by Miss Hayes; that among other questions contained in said statement was No. 18, which read, "Have you ever sustained loss through the dishonesty of any one holding the position of the applicant?" that said question was answered, "No," and that said answer was false. The report continues as follows: "The plaintiff H. A. Newton, who dictated the answer to said question, testified that he told the defendant Hayes (the defaulting employé), who wrote the answer to this and all other questions, to answer that a previous loss had occurred. The defendant Hayes testified that H. A. Newton told her to answer said question by saying that no previous loss had occurred, and that she did write, in answer to said question, that no previous loss had occurred. The testimony further shows that the original paper which contained question 18 and its answer was lost in the Baltimore fire. The only other testimony introduced on the subject is the deposition of Charles H. Lemkul, which was received over the objection of plaintiffs' counsel, and it is largely on account of this testimony that I find that question 18, as aforesaid, was answered falsely." Lemkul's testimony, on the point in question, was inadmissible. Exceptions to the referee's report were filed by plaintiffs, and likewise the defendant here appealing. Thereafter, January 5, 1907, the court overruled the exceptions of defendant, sustained those of plaintiffs, and further declared that the finding "No," in answer to question 18 in the written statement, was not sustained by the testimony, [1] Defendant made an issue by proper allegations upon the question of embezzlement, but made no issue as to whether the moneys or property alleged to have been embezzled were in the possession or under the control of Miss Hays as the employé of the plaintiffs. Under these circumstances, it is clear that the allegations of the complaint were construed and accepted by all parties as charging that the embezzlement by the employé related to property for which the employé was responsible under the terms of the bond. Defendant having been furnished with a bill of particulars of the moneys and property alleged to have been embezzled, it seems clear that, if such moneys and property therein described were not such as were covered by the bond, would have specially pleaded that fact and thereby disposed of the controversy. No such plea was inter all occurred within the period of the renewal bond, and, if the law would not permit a recovery for losses occurring under the period of the original bond, defendant could, upon proper objections, have excluded evidence of such losses. posed, and thereby defendant, in effect, con- | This was not done. It was permissible, unceded that the goods and moneys described der the pleadings, to show that the losses in the bill of particulars were in the possession and under the control of Pearl Mae Hayes as the cashier, clerk, and saleslady of plaintiffs. Moreover, before plaintiffs could recover, it was essential that the proof show that the embezzlement was one fully covered by the terms and provisions of the bond sued on. The abstract of record fails to show the bill of particulars referred to in the complaint and answer, or the evidence describing the property or the dates of its embezzlement. [2] Under these circumstances, we must assume that the evidence disclosed that the embezzlement was one fully covered by the terms and provisions of the bond. [3] It is not to be presumed that the referee found the affirmative of these facts, or the court approved such finding, unless it was warranted by the evidence. As said in Smith v. Bauer, 9 Colo. 380, 384, 12 Pac. 397, 399: "The evidence of plaintiff is not before us, and we must presume that his proof supplied such material matters as the averment may have omitted." 2. Defendant further contends that, to entitle plaintiffs to recover for a loss occurring within the period of the original bond, such loss must have been discovered not later than September 25, 1904; that the renewal constituted a separate and distinct contract, and, to recover for a loss occurring thereunder, the loss must have been discovered during such period, or within six months thereafter. The view which we take of the matter relieves us of the necessity of determining the particular contention. Were it conceded that defendant's contention is correct, it would not require a reversal of this judgment. [4] The allegation of the complaint is that the embezzlement took place "between the 1st day of September, 1903, and the 3d day of September, 1904," and that the loss was discovered "on or about the 13th day of January, 1905." The period in which the loss is alleged to have occurred embraced about seven months of the term of the original bond. It also covered about five months under the renewal bond. A discovery of the embezzlement on the 13th day of January, 1905, was not within six months after the expiration of the original bond, yet it was within the term of the renewal bond, and it is conceded that for a loss occurring within six months prior to January 13, 1905, the defendant would be liable under the renewal bond. These facts appearing in the complaint make that instrument invulnerable to the objection urged. Were we to apply the rule for which defendant contends, the complaint, nevertheless, states a cause of action. [5] If it were indefinite and uncertain, it devolved upon defendant to attack it in a [6] The abstract of the evidence before us does not show when the several embezzlements occurred, or that objections were made to the evidence relating thereto, on the ground that such acts were not discovered within six months after the expiration of the bond, or for any reason whatever. Under these circumstances, for the purpose of disposing of the objection urged, we will presume that improper evidence was excluded, and the evidence fully established the acts of embezzlement to be within the renewal period of the bond. This is not a case where the complaint fails to state any cause of action whatever in favor of plaintiff against the defendant. It is a case where a cause of action in that respect can be clearly gathered from the averments of the complaint. Upon the assumption of the correctness of the construction of the bond as contended for by the defendant, the defects, imperfections, and omissions in the complaint would have been fatal upon proper demurrer or motion. Upon defendant's theory, the issues joined were such as necessarily required, on the trial, proof of the facts showing the dates of the embezzlement, and that such dates were within the renewal period of the bond. Upon that assumption of the law, and the state of the pleadings, it is not to be presumed that the evidence did not warrant the judgment. To presume that the evidence showed the acts of embezzlement within the renewal period is not inconsistent with the alleged defective pleading, but perfectly consistent therewith. [7] Moreover, the defendant at all times in the court below treated the matter in litigation as though it were liable for any loss occasioned by the employé's acts of embezzlement occurring between September 1, 1903, and September 3, 1904, which were discovered on or before January 1, 1905. If any of the acts of embezzlement occurred during the period of the original bond, the bill of particulars advised the defendant of that fact, and it could properly have protected itself by plea. If evidence offered showed that some of the matters sued for were barred, because not discovered in time, a proper objection or motion would doubtless have excluded it. If defendant had considered itself prejudiced in its substantial rights, because held for loss sustained, for which it was not liable, the trial court could have granted relief upon proper application. Defendant resorted to none of these means of protection or relief. On the contrary, as liable for any loss sustained through embezzlement by the employé between the dates pleaded. This is clearly evident from the exceptions interposed to the referee's report. The only objection pertaining to this matter was that the evidence did not show "by a preponderance thereof that between the 1st day of September, 1903, and the 3d day of September, 1904, the defendant Pearl Mae Hayes did appropriate or convert to her own use moneys," etc., of the plaintiffs. The defendant, in no wise having asked a ruling of the trial court upon the very matter of which it now complains, but rather in all respects acquiesced therein, is precluded from taking a different position here. [8] 3. It is argued that inasmuch as the complaint contains no allegation that three months had elapsed, after notice and proof of loss, before the commencement of suit, it fails to state a cause of action. The contract required the plaintiffs to give notice to the defendant of the loss and accompany the same with satisfactory proof thereof. It then obligated defendant within three months thereafter to make payment to plaintiffs for such loss. It is argued that the doing of these things by the employers, and the lapse of three months thereafter, were conditions precedent to the right on the part of plaintiffs to recover. The general allegation that plaintiffs had performed and complied with all the conditions of the bond was sufficient under the circumstances of this case. In pleading the performance of conditions precedent in a contract, it is made unnecessary by section 66, Mills' Ann. Code, to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part. Besides, there is nothing in the pleadings that indicates that suit was brought before the expiration of three months from the time the proof of loss was made. [9] Courts take judicial notice of the date of the institution of a suit as it appears from the record, or from the file marks on the papers. [10] Under these circumstances, we will presume that the record disclosed to the referee and the court that the suit was not prematurely brought. [11] Moreover, if the suit was premature ly brought, and if such fact did not appear from the face of the complaint, it was the duty of defendant to present such question by special plea. [12] 4. Defendant contends that the trial judge was without authority to modify the referee's finding that the answer to question No. 18 in the employer's statement was false, and much of the argument of either party pertains to this matter. As far as this case is concerned, the acts of the court in that respect are wholly immaterial. A false statement, even if shown by the evidence, will not avail the defendant, unless it was pleaded as a defense. This was not done. [13] If the court erred in the premises, it was error without prejudice. If the defendant wished to take advantage of any clause in the contract which voided it, it was essential that it plead facts presenting the precise question. Loyal Mutual Co. v. Brown Mercantile Co., 47 Colo. 467, 475, 107 Pac. 1098. Perceiving no prejudicial error in the record which appellant is in a position to urge on this review, the judgment is affirmed. Judgment affirmed. CAMPBELL, C. J., and MUSSER, J., concur. (50 Colo. 390) TUNNEL MINING & LEASING CO. v. COOPER. (Supreme Court of Colorado. May 1, 1911.) 1. NEW TRIAL (§ 162*)-Grounds-EXCESSIVE VERDICT-REMISSION. Under Code, § 217, subd. 5, authorizing a new trial for excessive damages given under the influence of passion or prejudice, the court, when an excessive verdict is due to passion or remit a part of the verdict and enter judgment prejudice, must grant a new trial, and it cannot for the balance, but the court has no power to set aside a verdict merely excessive, and not influenced by passion or prejudice. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 324-329; Dec. Dig. § 162.*] 2. NEW TRIAL (§ 162*)-EXCESSIVE VERDICT -REMISSION-"PASSION OR PREJUDICE. A finding that a verdict for $38,750 for personal injuries was excessive by $28,750 is a finding as a matter of law that the verdict was the result of "passion or prejudice," within for excessive damages given under the influence Code, § 217, subd. 5, authorizing a new trial of passion or prejudice, and defendant has the absolute right to a new trial and the court may not enter judgment for $10.000 on the mere consent of plaintiff to accept it. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 324-329; Dec. Dig. § 162.*] 3. DAMAGES (§ 132*)-PERSONAL INJURIESEXCESSIVE DAMAGES. A miner, able by working continuously, to earn $1,200 a year was injured while at work in a mine. His right collar bone was fractured and three ribs of the lower left side were broken. His general circulation was impaired, and the broken ribs never united, but extended out from the general contour of the chest about an inch the vital organs as they would afford in normal and did not give full protection to some of condition. The right collar bone was shortened one-half an inch, and the left leg was shortened stantly wear a belt to mitigate the discomfort to a similar extent. He was compelled to concaused by the condition of the broken ribs. the time of the trial he could not do a man's work. Held, that a verdict for $38,750 was grossly excessive and the result of passion or prejudice, or a total misconception by the jury of its duty, especially in view of the fact that a At *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes former jury had fixed the damages at $5,200, necessitating a new trial. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*] 4. MASTER AND SERVANT (§ 264*)-INJURY TO SERVANT-COMPLAINT-ISSUES, PROOF, AND VARIANCE. The variance between the complaint in an action for injuries to a miner which alleges that a coemployé negligently spread the top posts with a cross-bar causing the timbering to collapse, burying the miner, and the proof that the thing which caused the timbering to collapse was the act of the coservant in giving a violent surge on the bar and throwing his weight against a post of the square set, is material. [Ed. Note.-For other cases, see Master and Servant, Cept. Dig. §§ 861-876; Dec. Dig. 8 264.*] "The result of our conclusion is-and that is the only point which we decide that, under our Code, where, in an action for personal injuries, and others standing on like grounds, a verdict is excessive, and was returned as the result of passion or prejudice upon the part of the jury, it should be set aside in its entirety and a new trial awarded, and that it is beyond the power of the trial court to order a remittitur as to the part which it deems excessive and enter judgment for the residue, because the entire verdict is vitiated by the improper motive, and it is impossible for the court to determine that any particular part is free from objection and some other part is bad. The En Banc. Appeal from. District Court, learned district judge, upon first impression, Teller County; J. W. Sheafor, Judge. was of opinion that the verdict should be set Action by J. E. Cooper against the Tunnel aside in its entirety, but upon subsequent inMining & Leasing Company. From a judg-vestigation concluded that the power to order ment for plaintiff, defendant appeals. Reversed and remanded. Milton Smith and Charles R. Brock, for appellant. Charles C. Butler, for appellee. BAILEY, J. In this action, for the recovery of damages for personal injuries, the plaintiff had a verdict for $38,750. One assignment of the motion for a new trial is based upon the fifth subdivision of section 217 of the Code, providing therefor, where excessive damages appear to have been given under the influence of passion or prejudice. The trial court found the award excessive, and advised the plaintiff that a new trial would be granted, unless $28,750 were remitted from the verdict. To this plaintiff assented and there was judgment for $10,000. The defendant objected and excepted to the order allowing such remittitur, and to the judgment for $10,000, claiming that, since the verdict was held excessive, it had an absolute right, under the Code, to a new trial. These objections, with many others, are here for consideration, the case having been brought up by defendant for review on appeal. [1] Whatever the rule may be in other jurisdictions, in this state it is settled, in the case of Davis Iron Works Co. v. White, 31 Colo. 82, 71 Pac. 384, in a well and carefully considered opinion, upon a compre hensive review of all the decisions to this point, that where in an action for damages for personal injuries, and in other like actions, the verdict is excessive, and is returned as a result of passion or prejudice, it is beyond the power of the trial court to allow a remittitur of the excess, and enter a judgment for the residue, but that the verdict must be set aside, and a new trial granted. The conclusion of the court in that case, in an opinion by Chief Justice Campbell, was stated in this emphatic and unmistakable language: a remittitur, though not strictly one that was inherent in the court, might nevertheless be exercised if the plaintiff consent, because the reduction of the verdict is in favor of the defendant and therefore he is not in a position to complain. This reason, at first blush plausible, is the one often given. The injury to the defendant in such circumstances does not consist in the mere striking from a verdict of a portion of it, but in entering judgment against him for any part of a verdict, the whole of which is vitiated by improper motives of a jury. The judgment should be reversed and the cause remanded, and it is so ordered." So that, if it can be fairly seen and held that the jury here returned an excessive verdict, influenced by passion or prejudice, or from any wrongful motive, a new trial must be granted, as it is a just inference that a finding for the plaintiff at all may have been brought about by improper considerations. The Legislature has given to a losing party an absolute right to a new trial, when he brings his cause within any of the seven stated grounds for which new trials are to be granted under the Code. The provision upon which the court acted in allowing the remittitur in this case, and which ground, among others, was relied upon by defendant for a new trial, reads thus: "Fifth. Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice.” It is apparent that trial courts here, under this provision, no longer have power to set aside verdicts because simply excessive, but can only do so when it is also found that the excess award is due to passion or prejudice. When the finding is that the verdict was so reached, a new trial must be granted, as it is then beyond the power of the court to permit a remittitur of a portion of the verdict and enter a judgment for such sum as in its judgment the jury should have returned. |