The opinion of the court was delivered by: WALSH
This case arises from a suit brought by an insured retail clothing store owner, plaintiff, against its insurer, defendant, under a comprehensive dishonesty, disappearance, and destruction policy, to recover as an insured loss the invoice value of certain merchandise which is claimed to have been taken from the plaintiff's retail store located in Washington, D.C., early in 1957.
The provisions of the comprehensive policy, No. CDD 28650B, which are pertinent to the discussion of this case, and under which suit is brought, are as quoted below:
'Employee Dishonesty Coverage
'I. Through any fraudulent or dishonest act or acts, committed anywhere by any of the Employees acting alone or in collusion with others, including loss of Money and Securities and other property through any such act or acts of any of the Employees, and including that part of any inventory shortage which the Assured shall conclusively prove to have been caused by the fraud or dishonesty of any of the Employees; provided that the Company's aggregate liability as to all Employees shall not exceed the Limit of Liability applicable to this Insuring Agreement I, subject, however, to the provisions of Section 9. 'Loss Caused by Unidentifiable Employees
'If a loss is alleged to have been caused by the fraud or dishonesty of any one or more of the Employees and the Assured shall be unable to designate the specific Employee or Employees causing such loss, the Assured shall nevertheless have the benefit of this Insuring Agreement I, provided that the evidence submitted reasonably (in case of inventory shortage, conclusively) establishes that the loss was in fact due to the fraud or dishonesty of one or more of the said Employees, and provided further that the aggregate liability of the Company for any such loss shall not exceed the Limit of Liability applicable to this Insuring Agreement I.'
Endorsement (Form B) No. 84 of said policy contains Insuring Agreement No. VII, which reads as follows:
"Burglary Coverage on Merchandise
"VII. Of merchandise, Furniture, fixtures and equipment within the premises by Burglary or by Robbery of a Watchman, while the Premises are not open for business, and for damage to the Premises, and to the insured property within the Premises by such Burglary, Robbery of a Watchman, or attempt thereat, provided with respect to damage to the Premises the Assured is the owner thereof or is liable for such damage.
"This Insuring Agreement VII does not apply: (1) to loss due to any fraudulent, dishonest or criminal act by any Assured, a partner therein, or an Officer, Employee, director, trustee or authorized representative thereof, whether acting alone or in collusion with others; * * *
"'Burglary' means the felonious abstraction of insured property from within the Premises by a person making entry therein or exit therefrom by actual force and violence as evidenced by visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the exterior or interior of the Premises at the place of such entry or exit."
Agreement VII also provided that the premises, where the alleged merchandise loss occurred, were to be equipped with an American District Telegraph Burglar Alarm System.
The evidence in the case indicates that the loss claimed by the plaintiff is alleged to have occurred sometime between January 26 and March 10, 1957, a period of approximately six weeks. The Testimony shows that on the first of those dates the semi-annual store inventory was begun and during this inventory of the articles listed as part of the loss were present in the second floor sales room of the store. It was further claimed by plaintiff that on the second date a special stock audit, prompted by the discovery that certain suits were not found in the sales room, was completed, and it was subsequently found that the merchandise consisting of 44 garments, having a total invoice cost of $ 3,072.43, was missing.
The evidence also shows that between the above two dates there were four burglar alarm signals received from the plaintiff's store at the American District Telegraph Co. (hereinafter referred to as ADT) central station, i.e., ...