McGee v. Maryland Cas. Co.

• Decision Date: 06 March 1961
• Docket Number: No. 41676,41676
• Parties: H. C. McGEE, d/b/a McGee Beverage Co. v. MARYLAND CASUALTY CO.
• Court: Mississippi Supreme Court

Page 656

127 So.2d 656

240 Miss. 447

H. C. McGEE, d/b/a McGee Beverage Co. v. MARYLAND CASUALTY CO.

No. 41676.

Supreme Court of Mississippi.

March 6, 1961.

Carlisle & Carlisle, Columbus, for appellant.

William J. Threadgill, DeWitt T. Hicks, Jr., Columbus, for appellee.

RODGERS, Justice.

The appellant, H. C. McGee, is a resident of the State of Alabama and operates a wholesale beer distributor's business with an outlet an Columbus, Mississippi, and a branch outlet at Holly Springs, Mississippi. Mr. Marvin Cash is the manager for appellant at Columbus and Mr. Charles T. Goodwin was manager of the Holly Springs warehouse and was paid a commission of thirty cents per case for beer sold. Mr. Goodwin was authorized to sell to customers for cash and credit. One of the customers of the Holly Springs establishment was a place of business known as Joe's Place, which was owned by Charles T. Goodwin but was managed by Joe Clark. Joe Clark paid for the beer by checks written on Joe's Place and some of these checks were marked 'insufficient funds', and some of them were redeposited and finally paid. Suit is here brought for $2,942.74 evidence by checks given on Joe's Place and one given by Charles T. Goodwin.

The suit is based upon a bond purchased from Maryland Casualty Company on August 7, 1958. The application for the bond set up the name of Charles T. Goodwin as an employee. The pertinent parts of this bond are the following paragraphs:

'Insuring Agreement. The Underwriter, in consideration of the payment of the premium, and subject to the Declarations made a part hereof, the General Agreements, Conditions and Limitations, and other terms of this Bond, agrees to indemnify the Insured against any loss of money or other property which the insured shall sustain through any fraudulent or dishonest act or acts committed by any of the Employees, acting alone or in collusion with others, to an amount not exceeding in the aggregate the amount stated in Item 3 of the declarations. * * *

'Exclusion. Section 2. This Bond does not apply to loss, or to that part of any loss, as the case may be, the proof of which, either as to its factual existence or as to its amount, is dependent upon an inventory computation or a profit and loss computation; provided, however, that this paragraph shall not apply to loss of money or other property which the insured can prove, through evidence wholly apart from such computations, is sustained by the Insured through any fraudulent or dishonest act or acts committed by any one or more of the Employees. * * *

'Prior Fraud, Dishonesty or Cancelation. Section 6. The coverage of this Bond shall not apply to any Employee from and after the time that the Insured or any partner or officer thereof not in collusion with such Employee shall have knowledge or information that such Employee has committed any fraudulent or dishonest act in the service of the Insured or otherwise, whether such act be committed before or after the date of employment by the Insured.'

The manager M. E. Cash examined the reports of Mr. Goodwin and took the checks above mentioned. Mr. Goodwin is said to have admitted that he did not have funds to cover these checks. Mr. Cash later returned to Holly Springs and had the checks marked 'insufficient funds'. The plaintiff claims that the giving of these checks on Joe's Place was covered under the terms of the bond. The case was submitted to a jury and the jury returned a verdict for the defendant Maryland Casualty Company.

The appellant H. C. McGee offered in evidence certain cash sales tickets which were first admitted by the court in evidence and finally the court reserved its ruling on objection made to the introduction of the tickets. It is the well settled law that reports made by an agent in line of duty are admissible in evidence. 20 Am.Jur., Evidence, Sec. 1049; 83 A.L.R. 817; Meridian...