167 Pa. Super. 268 | Pa. Super. Ct. | 1950
Opinion by
This is an action of assumpsit brought by the Stadham Company, a corporation, upon an employes’ fidelity bond — called a “Blanket Position Bond” — issued to it by the defendant. The jury rendered a verdict for the plaintiff in the sum of $1366.40 (representing the amount of the alleged loss with interest from the date of demand), whereupon the defendant filed motions for judgment n. o. v. and for a new trial, both of which were refused, judgment entered on the verdict and this appeal followed.
Beading the evidence in the light most favorable to the plaintiff and giving it the benefit of all inferences reasonably deducible therefrom, as we are required to do in view of the verdict of the jury, the facts are as follows:
During the period in which the bond in suit was in force, the plantiff was engaged in the business of selling supplies to the laundry and dry cleaning trade. Its warehouse consisted of two adjoining buildings in which approximately one thousand items were kept in stock. These buildings were protected by a system of burglar alarms, and when no employees were about, the rooms in which the stock was kept were locked. It was the practice of the plantiff to make physical inventories of its stock semi-annually on April 30 and October 31. The physical counts of each item of stock were at these times compared with corresponding inventory cards which were kept current by adding incoming shipments as debits and subtracting sales as credits. These inventory cards were kept with care and accuracy. A physical inventory made in the normal course of business April 30, 1947 disclosed no shortages in stock.
In October of 1947, the plaintiff received an order for a number of laundry nets, an item regularly stocked by it for the purpose of resale, and discovered that,
The discovery of the shortage in the supply of laundry nets, coupled with the unauthorized use of the company truck by Taylor on a day when he was not supposed to be at work, aroused the suspicions of the plaintiff’s officers and caused them, on Tuesday, October 21, 1947, to have made spot checks of stock on hand as compared with inventory records. This spot check disclosed a shortage of approximately $1200.00. On that same day Taylor was called into the office of. Michael W. Steinig and told by Steinig that he was suspected of having caused the shortage. Taylor did not deny the theft but rather said, “How much is it? I will pay if you don’t do anything about it.” And, when informed of the amount of the shortage, said, “Oh, it can’t be that much.” It was in evidence that Taylor had, on October 17, 1947, asked James Belton, another of plaintiff’s employes, if he wanted to make some easy money selling laundry nets belonging to the plaintiff.
Taylor did no further work for the plaintiff after October 21, 1947, returning only to collect his pay on Friday, October 24, 1947. A regular semi-annual inventory was taken by the plaintiff on October 31, 1947,
In support of its motion for judgment n. o. v., the defendant contends that the evidence does not support the verdict in that the plaintiff did not meet the burden of proving a loss imposed upon it by the bond, the pertinent provision of which is as follows:
“3. That in case a loss is alleged to have been caused by the fraud or dishonesty of one or more of the Employes and the Insured shall be unable to designate the specific Employe or Employes causing such loss, the Insured shall nevertheless have the benefit of this bond, provided that the evidence submitted reasonably establishes that such loss was in fact due to the fraud or dishonesty of one or more of said Employes, but if such loss, or any part thereof, be disclosed by an inventory computation, the Insured shall have the benefit of this bond only for so much of the loss so disclosed as the evidence submitted conclusively establishes was in fact due to the fraud or dishonesty of one or more of said' Employes . . .”
It will be seen that the latter portion of the above provision has no application unless the loss is discovered (for it is in this sense that the word “disclosed” must be read) as the result of an inventory computation. If the loss is discovered by any means other than an inventory calculation, the first part of paragraph 3 governs and the insured need only submit evidence which “reasonably establishes” that such loss was in fact due to the fraud or dishonesty of one or more of its employes. This construction is strengthened by the Indemnity Clause of the bond by which the defendant agreed to indemnify the plaintiff “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 dis
It is clear in the present case that the plaintiff was aware of the fact that there had been a loss in advance of either the spot check or the inventory taken to determine the extent of such loss; and it cannot be said as a matter of law that the plaintiff failed to present evidence which “reasonably established” that it suffered a loss due to the fraud or dishonesty of its employe.
Even assuming that the alleged loss was discovered as the result of an inventory computation and that, therefore, the plaintiff was required to present evidence which “conclusively” established that the loss was in fact due to the fraud or dishonesty of one or more of its employes, the result would not be different. The phrase “conclusive evidence”, when used in an insurance policy, is not to be given its technical meaning : it merely serves to cast upon the insured the burden of introducing evidence which excludes any other theory than that the loss was occasioned by the risk insured against: Perry v. Southern Surety Co., 78 Pa. Superior Ct. 222. This burden the plaintiff has met and overcome. The possibility of the loss having been caused by the thefts of persons other than the plaintiff’s employes is excluded within practicable limits by evidence showing that the warehouses were protected by a system of burglar alarms and that the storerooms in which the stock was kept were locked at all times when none of the plaintiff’s employes were about. Furthermore, the evidence in regard to the guilt of the plaintiff’s employe, James Taylor, tends to further weaken the hypothesis of thefts by outsiders. In this connection, the defendant mentions the fact that commercial truckers had access to the plaintiff’s warehouse and suggests that one or more of them might have been responsible for the losses. The answer to
The possibility that the loss was only a paper loss resulting from an error on the inventory is excluded by evidence showing a record of eighteen years of accuracy in the taking of such inventories. There is no suggestion of a price change which, if not compensated for on the inventory cards, Avould result in an apparent shortage, and further the plaintiff kept an itemized list of its stock which disclosed that specific items were missing. The shortage could not be accounted for by sales made on credit since such sales were deducted from the running balance on the inventory cards in the same manner as cash sales.
The defendant’s motion for judgment n. o. v. was pxmperly refused.
In support of its motion for a new trial, the defendant argues that the trial court committed prejudicial error by admitting into evidence the inventory taken by the plaintiff on October 31, 1947, because it was taken ten days after James Taylor left the employ of the plaintiff and for that reason might reflect losses resulting from causes other than the larceny of James Taylor.
We think that this particular point has been decided adversely to the defendant in Hamill v. Fidelity & Casualty Co. of N. Y., 104 Pa. Superior Ct. 602. In that case, the bulk of the loss for which the insured brought suit under a policy providing indemnity for
The defendant further complains of the inadequacy of the trial court’s charge, to which it took neither specific nor general exception. In these circumstances, mere inadequacy of a charge may not be made the basis for the reversal of a lower court’s refusal to grant a new trial. Phila. Saving Fund Society v. Bethlehem, 143 Pa. Superior Ct. 449, 17 A. 2d 750; Roberts & Moritz v. Fickler, 76 Pa. Superior Ct. 237; Seret v. Carbley, 350 Pa. 434, 39 A. 2d 607. A party may not remain silent and take his chances on a verdict, and then, if it is adverse, complain of mere inadequacy which could have been corrected. Meholiff v. River Transit Co., 342 Pa. 394, 20 A. 2d 762; Susser v. Wiley, 350 Pa. 427, 39 A. 2d 616.
The refusal of a new trial will be reversed only upon a showing that the court manifestly abused its discretion (Holt v. Pariser, 161 Pa. Superior Ct. 315,
Judgment affirmed.
