National Shirt & Hat Shops of Carolinas v. American Motorists Ins. Co.
| Decision Date | 01 February 1952 |
| Docket Number | No. 670,670 |
| Court | North Carolina Supreme Court |
| Parties | NATIONAL SHIRT & HAT SHOPS OF THE CAROLINAS, Inc. v. AMERICAN MOTORISTS INS. CO. et al. |
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.
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...
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