The plaintiff brings suit herein against the defendant on two policies of insurance, both of which were issued by the defendant to the plaintiff. One of the policies is known as a Comprehensive Dishonesty, Disappearance and Destruction Policy under the insuring agreement of which there is $5000.00 coverage for the dishonesty of each identifiable employee. The other policy is known as a Valuable Papers and Records Policy and affords coverage in the amount of $10,000.00. There appears to be no question about the issuance of the policies аnd that the alleged incidents complained about occurred during a period of time in which the insurance provided by each policy was in effect.
The plaintiff was and is engaged in the general employment agency business in Oklahoma City and asserts that during March of 1963, three of its emрloyees left their employment with the plaintiff and in doing so unlawfully and wrongfully took from the plaintiff’s place of business certain papers and records in the form of an ad book, a cross reference index, a branch managers manual, a placement directors manual, mаster order cards, master lead cards, male applications and female applications. The plaintiff further alleges that upon the departure of these three employees or shortly thereafter they each became employed by a compеtitor of the plaintiff. It appears that the three employees, who are named by plaintiff, left plaintiff’s employment during a period of about two weeks.
The defendant answers by denying that the three named employees took any of the records involved, and further asserts that the plaintiff is not entitled to recover, inasmuch as it has failed to meet certain conditions in the valuable papers and recoi'ds policy with reference to the required means of keeping and securing said records and as to both policies for failure to notify the police of the alleged loss as required by each policy inasmuch as the loss of said records was a violation of law.
The dishonesty policy covex's the loss of property which the insured shall sustain through any fraudulent or dishonest act or acts committed by any of its employеes acting alone or in collusion with others. The policy also provides that if any such fraud or dishonesty is committed by one or more of the employees of the insured and the insured is unable to designate the specific employee or employees causing such loss, the insured shall nevertheless have the benefit of the aforementioned insuring agreement, provided, that the evidence submitted reasonably proves that the loss was in fact
The valuable papers and records policy provides coverage for direct physical loss of or damage to valuable papers and rеcords in the premises. This policy also provides that each receptacle within which the valuable papers and records are kept when not in use, is described as “Metal Filing Cabinets,” and at all times when the premises are not open for business, the insured will keep the vаluable papers and records in the receptables so described except while such valuable papers and records are in actual use. This policy also provides that upon knowledge of loss the insured shall notify the police thereof if the loss is due to а violation of law.
^ The principal owner or manager of the plaintiff, whose name is Edgar Kopp, and his wife, Elaine Kopp, testified about the missing records and how and where they were maintained, used and kept in the office. Mr. Kopp also testified as to their value. In generаl, Mr. Kopp testified to the existence of these records and that shortly after the last of the three employees in question left the plaintiff’s employment, their loss was discovered. His testimony was conflicting and contradictory in large measure with reference to the manner in which these records were kept, particularly with reference to their location at night. It seems he kept the manuals in his desk when not at his home. The ad book, cross reference index and master cards were kept in the receptionist’s desk. Mrs. Kopp noticed some of thе material being gone. One Ron Kennedy, an employee of the plaintiff, testified he knew nothing about the master lead cards or the manuals but said the master ad book could not be found after the employees left. This is a book in which ads run by the plaintiff are pasted. He only recalled one of the plaintiff’s applicants being placed in work by the competitor with which the three employees became associated after their departure. He stated that all applications were kept on the tops of desks day and night. Another present employee of plaintiff, one Evelyn London, said that some female applications were missing when the employees left. Upon further examination she only recalled one such application and that she had a new application made out. This witness also tеstified that the applications were kept on tops of desks day and night. None of the plaintiff’s witnesses saw any of the em^ ployees remove or take anything from the premises at any time with reference to the missing articles or records. It seems that all master records werе duplicated in the various departments of plaintiff’s business.
The three accused employees each testified and denied taking any of the missing records. All testified about their reasons for leaving the plaintiff’s employment, which were personal in nature. Also that their new employеr paid better commissions. They denied taking any records to their new employer and the manager of the company with which they went to work also testified and denied that any such records were ever brought to, seen, or used in her business operations. There is no evidence that the records were ever found or seen in the office of the new employer. This witness also testified to the effect that such records would serve no purpose or advantage to her business. Each of the three accused employees testified that no one connеcted with the plaintiff has ever directly accused them of taking any of these records and the first knowledge they had of any such accusations was from insurance adjusters investigating the claim of plaintiff.
Other former employees of the plaintiff testified generally to the effect thаt all applications were either left on the tops of desks night and day or were stacked on the floor. With reference to keys to the outer door the testimony generally was to the effect that Mr. and Mrs. Kopp had' a key to the outer door, as did Mrs. Sherri Massie, a secrеtary-bookkeeper,
Turning now to the dishonesty policy, it is the opinion and finding of the Court that the evidence presented is wholly and completely inadequate to establish any fraudulent or dishonest act or acts committed by any of the three employees in question. In the first place, the Court has serious doubts about the actual existence of some of these alleged lost records but as to those that may have been in existence the Court is fully and completely satisfied from the evidence that none of them were removed or taken by any of the three employees in question or by any other unidentified employee of the plaintiff. The evidence shows that the plaintiff never reported this matter to the police, never confronted the three employеes with accusations that they had taken the records except by and through this litigation, and even at the trial Mr. and Mrs. Kopp were unwilling to accuse the three employees of taking these records except Mrs. Kopp said that she now accuses one of them. In the state of the evidence and record of this case the Court is unwilling to say that any of the three accused employees or any other employees of the plaintiff has committed any fraudulent or dishonest act or acts with reference to the alleged missing records. Such being thе case the Court is of the opinion and finds that the plaintiff has not sustained by a preponderance of the evidence any acts of a fraudulent or dishonest nature on the part of the three accused employees or any other employees of the plaintiff. In this сonnection, the Court specifically finds from the evidence that none of the alleged missing records were taken by or removed by any of the three accused employees of the plaintiff.
Accordingly, judgment should be entered in favor of the defendant and against the plaintiff and the complaint should be dismisssed. Counsel for the defendant will prepare an appropriate judgment for the signature of the Court and entry herein.