National Shirt & Hat Shops v. AMERICAN MOTORISTS

68 S.E.2d 824 (1952) 234 N.C. 698

NATIONAL SHIRT & HAT SHOPS OF THE CAROLINAS, Inc.
v.
AMERICAN MOTORISTS INS. CO. et al.

No. 670.

Supreme Court of North Carolina.

February 1, 1952.

Falk, Carruthers & Roth, Greensboro, for plaintiffs, appellees.

Welch Jordan, Greensboro, for defendant appellant, American Motorists Ins. Co.

Shuping & Shuping, Greensboro, for defendant appellant, William W. Wade.

DENNY, Justice.

The defendants challenge the correctness of the ruling of the court below in denying their motions for judgment as of nonsuit interposed at the close of the plaintiff's evidence and renewed at the close of all the evidence.

We think the evidence introduced in the trial below, when considered in the light most favorable to the plaintiff, as it must be on a motion for judgment as of nonsuit, is sufficient to warrant the submission of the case to the jury. Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.

We concede that the loss disclosed by the shortage in plaintiff's inventory at its Charlotte store, without any further evidence tending to show that such loss was the result of larceny, theft, embezzlement, forgery, misapplication, wrongful abstraction, wrongful misapplication, or other fraudulent or dishonest act or acts, committed by one or more of the employees of the plaintiff, during the period covered by the bond in suit, would be insufficient to support a verdict against the defendant Insurance Company. Bank of Peachland v. Fairley, 202 N.C. 136, 162 S.E. 229, 98 A.L.R. 1271 note; Home Owned Stores v. Standard Accident Ins. Co., 256 Ky. 482, 76 S.W.2d 273; Crescent Cigar & Tobacco Co. v. National Casualty Co., La.App.1934, 155 So. 505; Phipps v. American Employers' Ins. Co. of Boston, Mass., 118 Pa. Super. 133, 179 A. 816; Salley v. Globe Indemnity Co., 133 S.C. 324, 131 S.E. 616, 43 A.L.R. 971; Hartford Acc. & Indemnity Co. of Hartford, Conn. v. Hattiesburg Hdw. Stores, Miss., 1951, 49 So.2d 813; Cobb v. American Bonding Co. of Baltimore, 5 Cir., 118 F.2d 643.

While the defendant Wade denied the commission of any dishonest acts in connection with the alleged shortage, he did not deny the correctness of the amount of the shortage as reflected by the inventory but simply claimed he could not explain how it occurred. However, according to the evidence, he admitted he was responsible for the shortage and wrote the president of the plaintiff corporation that he realized the shortage was his responsibility; that he was offering no alibis; that he had failed in his duty and intended to make the loss good.

This admission of responsibility for the shortage does not constitute an admission of guilt, but it does tend to show that he did not believe, nor contend, that the shortage occurred as a result of shoplifting or by any other method over which he had no control and for which he was not responsible. Moreover, it appears from the evidence that he destroyed the cash register tickets which constituted the only record evidence that would have shown conclusively whether or not he properly accounted for all the merchandise sold in the plaintiff's Charlotte store while he was manager. He denies having ever been instructed to preserve the cash register tickets. However, there is ample evidence to support a finding to the contrary. There is also evidence to the effect that he requested one of his clerks to overcharge customers. This would tend to show that some reason existed which made it necessary or desirable to obtain surplus cash. Furthermore, according to Wade's testimony, he reported one shortage in inventory to the Greensboro office of the company and requested Mr. Asbury to check on it. No such report was received or any such request made, according to Mr. Asbury's testimony. Moreover, the defendant Wade testified he made reports to the company in Greensboro which were not correct and he knew they were not correct. "It is true that I kept reporting inventories which I did not have on hand and which I knew I did not have on hand." He undertakes, however, to absolve himself of blame in this respect by saying, "So did Greensboro."

When the above evidence is taken into consideration, we think it is sufficient to support the verdict rendered below and to distinguish this case from those relied upon by the defendants. The evidence goes beyond showing possibility of misappropriation on the part of the defendant Wade, Broughton v. Standard Oil Co., New Jersey, 201 N.C. 282, 159 S.E. 321, or mere opportunity to commit the offense alleged, State v. Gordon, 225 N.C. 757, 36 S.E.2d 143, or equal opportunity for others to have abstracted the goods or money, State v. Penry, 220 N.C. 248, 17 S.E.2d 4, as contended by the defendants.

It is further contended by the defendants that the charge on the burden of proof on the first issue was erroneous, which was as follows: "The burden of proof upon this first issue is upon the plaintiff to satisfy you by the greater weight of the evidence that William W. Wade embezzled money or other property of the plaintiff as alleged in the complaint."

It is contended that since the bond in suit provides indemnity "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 dishonesty of any Employee or Employees) belonging to the Insured * * * through embezzlement * * *," etc., the court is required to charge the jury as to its duty in "measuring the burden of the issue" in the light of this language. However, it is not contended that the purpose of the bond with respect to the conclusiveness of proof as to an inventory shortage was designed for or could have the effect of altering, modifying, or enlarging the rules of evidence.

We think the contention is without merit. It is settled with us that in a civil action containing an issue including a criminal charge, the party required to carry the burden of proof is only required to do so by a preponderance of the evidence or by its greater weight. Rippey v. Miller, 46 N.C. 479; Blackburn v. St. Paul Fire & Marine Insurance Co., 116 N.C. 821, 21 S.E. 922; Hyder v. Hyder, 215 N.C. 239, 1 S.E.2d 540. See also Stadham Co. v. Century Indemnity Co., 167 Pa.Super. 268, 74 A.2d 511.

In the case of Miller v. Massachusetts Bonding & Ins. Co., 247 Pa. 182, 93 A. 320, L.R.A.1915D, 615, the Court construed a provision in an indemnity bond which required any loss thereunder to be proven by "direct and affirmative evidence", and in which action the defendant contended that by reason of this provision, loss could not be established by circumstantial evidence. The Court said: "Appellant's contention is that the evidence adduced by plaintiff to show the felonious taking of the property was wholly circumstantial, and that, conceding the sufficiency of the evidence in ordinary case to warrant an inference of theft, yet, because here the agreement of the parties required for the establishment of this material fact on which defendant's liability was made dependent evidence direct and affirmative, of the former of which there was none, binding instructions should have been given. This contention gives to the words `direct and affirmative evidence,' a meaning so severely technical that, if this meaning alone can be given them, a policy containing the provision we have here would avail the assured only in the rarest and most exceptional cases, so exceptional that the average person would hardly think the contingency in which the policy could operate worth guarding against. * * * To limit the assured's right to recovery to cases where the corpus delictican be proved by direct testimony—that is, by the testimony of witnesses who saw the actual taking—would make the policy next to valueless. We will not impute to the defendant company any such purpose in the use of these words; nor can we assume that the assured understood them in this narrow and restricted sense, * * *. Stated plainly, what is contended for is that, the factum probandum being the felonious taking of the property, this could only be established by the testimony of one or more witnesses who were present and saw the theft or larceny actually committed; or it may be stated thus, that the parties intended by the words to exact a higher degree of proof to charge the company with liability for the loss than the law requires to convict the burglar or thief of the crime itself. * * * A reasonable construction of the words would ascribe to the parties the single purpose to require something more than the mere fact of loss to entitle the assured to recovery on the `policy.'

In construing a provision similar to that considered in the last cited case, the Court in the case of Gaytime Frock Co. v. Liberty Mut. Ins. Co., 7 Cir., 148 F.2d 694, 695, said: "Concededly, to establish defendant's liability, it was necessary that plaintiff prove that the inventory shortages were caused by fraud or dishonesty of plaintiff's employees. * * * it was not necessary that the plaintiff's proof should establish facts sufficient to convict the employee or employees of larceny, * * *. To be sure, the fact that the shortages were caused by the dishonesty of plaintiff's employee or employees may be established by circumstantial evidence, but the evidence to establish that fact must be of such a nature that it is the only conclusion that can fairly or reasonably be drawn, that is to say, such evidence must fairly and reasonably exclude any other explanation."

The mere fact that plaintiff's loss was discovered as a result of an inventory computation does not mean necessarily that the loss actually resulted from the shortage disclosed by the inventory. It is just as plausible to conclude from the evidence disclosed on this record that the actual shortage resulted from a failure to account for cash received from the sale of merchandise. A failure to account for such proceeds from the sale of merchandise, and the further failure to deduct such merchandise sold from the perpetual inventory, would create a shortage in the inventory. Nevertheless, the actual embezzlement, in such case, would be of money, the loss of which the plaintiff is only required by the terms of the bond in suit, to prove by evidence that "reasonably establishes that such loss was in fact due to the fraud or dishonesty of one or more" of its employees.

Plaintiff, in the present action, had to rely on circumstantial evidence to prove its loss. Even so, in order to carry the burden of proof in establishing such loss, the rule that circumstantial evidence must be such as to preclude every other hypothesis, but the guilt of the accused, does not apply in civil cases. Rippey v. Miller, supra; Blackburn v. Insurance Co., supra; Hyder v. Hyder, supra.

The evidence is only required to be sufficient to reasonably establish that the loss was due to the dishonest acts of Wade, as alleged. Durham Pepsi Cola Bottling Co. v. Maryland Casualty Co., 228 N.C. 411, 45 S.E.2d 375. The charge of the court below was ample on this phase of the case, and also contained this further instruction: "If you find that there was a shortage but that it came through errors in making sales or by shoplifting or on account of negligence on the part of Wade in the way he managed the shop, that is, on account of Wade's failure to use that degree of care which an ordinarily prudent person would have exercised under the same or similar circumstances when charged with a like duty, or by a combination of these ways or that it came about in any manner other than by a fraudulent conversion on the part of Wade you would answer the first issue No"

We have carefully considered the remaining exceptions and assignments of error, and do not consider them to be of sufficient merit to warrant a disturbance of the verdict below.

In the trial below, we find

No error.