Durham Pepsi-Cola Bottling Co. v. Maryland Casualty Co.

Seawbll, J.

Under the exceptions noted, the defendant arrays the following objections to the trial:

First, that the defendant’s contract of insurance does not cover the kind and character of loss shown by plaintiff, since the evidence shows a burglarious entry and abstraction from the safe while employees were not on duty; second, that there is a complete failure of proof since no evidence has been directed to any particular employee covered by the policy; and not necessarily to any employee at all; and third, that the trial judge failed to give defendant’s special instruction relating to non-recoverability for the lost cheeks under plaintiff’s evidence, which, it is contended, fails to show an actual money or property loss by their taking.

Turning to the first two objections, which may be considered together, we are of the opinion and so hold that the felonious taking of the money and things of value from the safe, as described in the evidence, would be a loss within the meaning of the terms employed in the policy providing indemnity for loss “through larceny, theft, embezzlement, forgery, misappropriation, wrongful abstraction, willful misappropriation, or other wrongful, fraudulent or dishonest act or acts,” and if attributable to an employee acting directly or in collusion with others during the life of the policy, would render the defendant liable for the loss. The fact that the wrongful abstraction may have been made by an employee or employees in other than working hours does not destroy the relation between employer and employee, the nature of the trust, nor, as exemplified in this case, does it necessarily affect the superior facilities for theft, larceny, or fraudulent acts of dishonest but trusted employees against which it was intended to insure. The inability to fix the crime on any particular employee is not fatal to recovery.

The difficulty of proof where several employees are in a position of common trust is sufficiently obvious as to have become a matter of treaty between the insurer and the insured. See pertinent provisions above quoted. The evidence is sufficient to reasonably establish that the loss was due to the dishonest act of one or more of the employees, and satisfies the conditions of liability.

However, we are not sure that plaintiff is entitled to recover, as for a money loss, the face value of the lost checks, or indeed, on the present showing, anything for -their loss. While the special instruction requested by defendant is, perhaps, not as ample as might have been demanded, we are inclined to the opinion that the question is raised here regarding the validity of that much of the recovery. No doubt the names of many customers who paid in checks are known and in many instances' payment of the lost checks may be stopped and collection made. As between the insurer and the insured it seems that some effort of that sort might have been a duty.

On the oral argument the plaintiff’s counsel expressed a willingness to abate the judgment by the amount represented by the checks.

This cause is remanded to the Superior Court of Durham County, .where the plaintiff will be permitted to file waiver as to the amount of recovery representing lost checks, as appears from the record; whereupon judgment will be entered for the balance recovered as determined upon the issues; otherwise, for error in the respect mentioned judgment will be there entered directing a new trial upon the second issue.

Error and remanded.