United States Fidelity & Guaranty Co. v. Des Moines Nat. Bank

Citations

• 145 F. 273
• 74 C.C.A. 553
• 1906 U.S. App. LEXIS 3970

Syllabus

<p>1. Employer’s Indemnity Bond — Degree of Care to be Exercised by Employe — Instruction to Jury.</p> <p>In an action upon a bond whereby a guaranty company agrees to make good and reimburse to an employer any pecuniary loss sustained by him through the personal dishonesty or culpable negligence of an employe in connection with the duties of his employment, and wherein “culpable negligence” is defined to mean “failure to exercise that degree of care and caution which men of ordinary prudence and intelligence usually exercise in regard to their own affairs,” it is error to instruct the jury that the degree of care and caution, failure to exercise which on the part of the'employe will render the guaranty company liable for a resultant loss, is “the very highest, you might almost say the highest possible.” “the very highest,” and “an extraordinary and a very high degree.”</p> <p>2. Evidence — -An Inference of Fact Cannot be Drawn from Premises Which are Uncertain.</p> <p>An inference of fact cannot be legitimately drawn from a relmttnble presumption, but only from premises which are certain.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2444, 2445.]</p> <p>B. Same — Circumstantial Evidence Consistent With Either of Two Opposing Theories Proves ' Neither.</p> <p>A theory cannot, be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature, and are so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them. If the facts are consistent with either of two opposing theories, they prove neither.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, § 2486.]</p> <p>4. Neglio.exc'e When Actionable — Proximate Cause of Loss or Injury.</p> <p>Negligence is actionable only when loss or injury proximately results therefrom, and to be thus proximate the loss or injury must be a natural and jirobable consequence which o