St. Paul Fire & Marine Ins. Co. v. Comer, 45453
| Decision Date | 10 November 1969 |
| Docket Number | No. 45453,45453 |
| Citation | 227 So.2d 859 |
| Court | Mississippi Supreme Court |
| Parties | ST. PAUL FIRE & MARINE INSURANCE COMPANY v. Gordon R. COMER d/b/a Comer Packing Company. |
Ralph E. Pogue, Aberdeen, Gary L. Geeslin, Threadgill & Smith, Columbus, for appellant.
Houston & Chamberlin, Aberdeen, for appellee.
This is an appeal from a judgment of the Circuit Court of Monroe County wherein St. Paul Fire & Marine Insurance Company was held liable to the appellee under the provisions of a fidelity bond.
The record discloses that appellee, Gordon R. Comer, d/b/a Comer Packing Company (hereinafter referred to as Comer), is engaged in the business of processing meat products and offering them for sale. In furtherance of this business it was Comer's custom to employ route salesmen to solicit orders from prospective customers and to collect the accounts when due.
In 1961 Comer employed A. D. Robbins as a salesman for the territory of Pontotoc, Tippah, Lafayette, Marshall, and Benton Counties. This employment continued until the latter part of March 1963 when Robbins was discharged by Comer because of a shortage in his account. Thereafter Robbins repaid Comer $600, the amount of the shortage. Subsequently Robbins was requested by Comer to return to his former position as a route salesman. As a condition precedent to reemployment, Comer required Robbins to obtain a fidelity bond. The purpose of the bond was to insure Comer against any loss which might occur as the result of any dishonest or fraudulent act of the employee in the future. Robbins complied by applying for bond with an insurance agency who placed the policy with St. Paul Fire & Marine Insurance Company (hereinafter referred to as St. Paul), the appellant. The bond was payable to Comer in the principal amount of $3,000 for any losses caused by any fraudulent or dishonest acts of the covered employee.
Prior to the issuance of the bond St. Paul made no inquiry of Comer as to the character or business reputation of Robbins nor did Comer offer any information to it concerning the previous shortage of Robbins. As a matter of fact, the application for the bond, the premium payment, and the issuance of the bond was a transaction entirely between Robbins, the insurance agency, and St. Paul. Though it was the beneficiary n the bond, Comer did not participate in its acquisition.
The accounts of Robbins became delinquent in 1965. After learning of the delinquency, Comer discharged Robbins and directed its accountant to make an audit of the employee's accounts.
The audit disclosed a shortage in excess of $3,000. This result was reached by comparing the paid receipts for merchandise delivered to the sums received by the company in payment. Numerous customers testified they had paid Robbins for the products purchased from him. This testimony was corroborated by the introduction of paid receipts signed or initiated by Robbins. The bookkeepers of Comer testified that the funds collected from these accounts were not received by the company.
Thereafter Comer notified St. Paul of the loss resulting from Robbins' employment and requested payment under the bond. Payment was refused, precipitating this suit which resulted in judgment against St. Paul for the amount of the bond.
The issues to be determined by this Court are whether there was sufficient evidence to establish a shortage in Robbins' accounts with Comer as found by the trial court, and if so, whether Comer's failure to notify St. Paul of Robbins' previous shortage nullified St. Paul's obligation.
We have studied the record in scrupulous detail and are of the opinion that there is conclusive evidence from numerous witnesses to establish the shortage of Robbins. In fact, from the evidence the trial court could hardly have found to the contrary. The contention of the appellant that there is insufficient evidence to support the finding of the trial court is...
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