Opinion
38933.
DECIDED SEPTEMBER 28, 1961.
Complaint. Fulton Civil Court. Before Judge Etheridge.
N. Forrest Montet, for plaintiff in error.
Louis D. Yancey, Jr., contra.
An insurer may maintain an action in its own name against one who is an employee of the insured to recover an amount paid by the insurer to the insured under a contract to indemnify the insured against loss occasioned by the defalcation of any employee of the insured, when the insured has transferred and assigned to the insurer its right of action against the employee to recover the amount of the insured's loss resulting from a defalcation of the employee.
DECIDED SEPTEMBER 28, 1961.
The plaintiff contracted to "indemnify Columbia Supply Company and the other companies named and listed in schedule A . . . against any loss of money or other property, real or personal (including that part of any inventory shortage which the Insured shall conclusively prove has been caused by the fraud or dishonesty of any Employee or Employees) belonging to the Insured . . . which the Insured shall sustain and discover . . . to an amount not exceeding in the aggregate the sum of $10,000 through any fraudulent or dishonest act or acts committed by any one or more of the Employees . . . acting alone or in collusion with others, during the term of this bond." Plaintiff, in its petition, alleged that a proof of loss was submitted by the Columbia Supply Co. and Augusta Mill Supply Co. to the plaintiff in the aggregate amount of $4,975.90, which resulted from the defalcation of the defendant; that Augusta Mill Supply Co. was a subsidiary of the Columbia Supply Co., and the former was one of the companies listed in the schedule of companies attached to the bond; and that it paid to the above named companies the amount of loss claimed in the proof of loss. As shown by an exhibit to the plaintiff's petition, the above named companies transferred and assigned to the plaintiff "every right and cause of action, claim or demand of whatsoever kind, nature or description, resulting from or growing out of the dishonest act or acts or misappropriation of funds or the failure of Curtis S. Treadway duly to account for funds or other properties received or held by him by virtue of his employment." Also attached to the petition as exhibits are copies of the bond and the proof of loss submitted by said companies. The allegations of the plaintiff's petition and the exhibits attached thereto describe in detail the alleged defalcation of the defendant. A copy of an application by the defendant to the plaintiff for a fidelity bond in favor of the defendant's employer, which was listed as "Augusta Mill Supply," was attached to the plaintiff's petition. To the petition, as amended, the defendant filed general and special demurrers which were overruled. The defendant assigns these rulings as error.
The defendant contends that the bond is limited to the company listed on the application only, and he also contends that Augusta Mill Supply cannot be considered the same concern as Augusta Mill Supply Co. We are of the opinion that it is unnecessary to determine these questions. Regardless of any application by the employee for a bond or contents of such application, the indemnity contract (bond) shows upon its face to be between the companies named, as the insured, and the plaintiff, whereby the latter agreed to indemnify the insured against any defalcation of its employees.
This court recognizes that there is a distinction between a contract of surety and indemnity, but it is unnecessary to determine whether the contract in the instant case is one of surety or indemnity. See John Church Co. v. Aetna Indem. Co., 13 Ga. App. 826 ( 80 S.E. 1093); 42 C.J.S. 566, Indemnity, § 3. As stated in Yorkshire Ins. Co. v. Cravey, 102 Ga. App. 591, 596 ( 117 S.E.2d 167): "A petition merely serves, among other purposes, to set forth sufficient facts to show the plaintiff has a right for which the law supplies a remedy." Under the ruling of Lumpkin v. American Surety Co., 61 Ga. App. 777 ( 7 S.E.2d 687), and First Nat. Bank v. American Surety Co., 71 Ga. App. 112 ( 30 S.E.2d 402), the petition alleges sufficient facts to set forth a cause of action upon the basis that the defendant's employers have assigned their cause of action against the defendant to the plaintiff. The petition sets forth sufficient facts to allege a cause of action, and the trial court did not err in overruling the general and special demurrers.
Judgment affirmed. Townsend, P. J., and Jordan, J., concur.