the period when the loss occurred, i.e., on February 19, February 20, February 26, and February 27, 1957. This was more than the number of alarms reported at the store in the following eight months. While it was suggested that some of these alarms might be explainable by faulty electric circuits and other causes, no specific explanation was given by ADT for each of the four alarms at the store during the time here in question.
7. On one of these four nights a burglary of the store occurred through its roof trapdoor and the inventory loss of $ 3,072.43 was caused by the burglary.
The entry or exit of the burglar(s) was evidenced by visible marks made by tools or electricity, showing tampering with the ADT alarm wire for the roof trapdoor and the fastening hooks of the door. The wire had been spliced, there was slack in it, and the hooks were hanging loose, permitting the trapdoor to be opened wide enough for ingress and egress of a man's body without setting off the alarm.
8. Except for the evidence that the loss occurred by reason of burglary, the remaining evidence of record shows that the loss must have occurred as a result of the dishonesty of unidentifiable employees of plaintiff, for the evidence clearly and convincingly excluded all other explanations of the loss. The nature of the merchandise lost, the physical layout of plaintiff's store, the surveillance of customer exits maintained by plaintiff, the size of the loss and short time in which it occurred, together with the careful and detailed inventory control maintained by plaintiff, ruled out the possibilities that the loss was due to customer theft, spoilage, breakage, sales, or other dispositions of the garments in the course of legitimate store operations, accounting errors, or other imponderable factors. Accordingly, apart from the evidence of burglary, the Court finds that the loss must necessarily have been attributable to the dishonesty of one or more unidentifiable employees of plaintiff.
Conclusions of Law
1. The requirement in defendant's insurance policy insuring plaintiff against burglary that such burglary be evidenced by 'visible marks' made by tools or electricity at the exterior or interior of the premises at the place of entry is satisfied by evidence that a burglar alarm wire attached to the roof trapdoor in plaintiff's store had been spliced, that there was slack in the wire, and that the hooks to fasten the trapdoor had been unfastened, thus permitting the trapdoor to be opened far enough to permit ingress and egress of a man's body without setting off the burglar alarm.
2. Such evidence, coupled with the fact that during a specific six-week period, when plaintiff suffered a large merchandise loss from its store, an abnormally large number of unexplained night-time burglar alarms was received from the store, satisfies the requirements for proof of loss due to burglary within the meaning and coverage of the policy.
3. Plaintiff established by a preponderance of the evidence that between January 56 and March 10, 1957, it suffered a merchandise loss of 44 garments having a total invoice cost of $ 3,072.43, as a result of burglary within the meaning and coverage of the plaintiff's insurance policy with defendant.
4. The provision in defendant's policy insuring plaintiff against any merchandise loss which is 'conclusively' proven to have been caused by the fraud or dishonesty of plaintiff's employees does not require proof beyond the possibility of contradiction, but is satisfied by evidence reasonably establishing such a loss. Thus, clear, satisfactory, and convincing evidence, which, by a process of elimination, positively excludes all possible explanations of the loss other than employee dishonesty meets the policy requirement in a case where the actual employee or employees cannot be ascertained.
5. Inasmuch as defendant's policy insured plaintiff against loss due to both burglary and employee dishonesty, plaintiff is entitled to recover under the policy where the evidence conclusively establishes that if the loss did not occur by reason of burglary, then it must have been due to employee dishonesty, as those terms are used in the policy, i.e., if, apart from the proof of burglary, the evidence conclusively establishes that the loss must necessarily have occurred by reason of employee dishonesty.
6. Apart from the evidence of burglary, plaintiff conclusively proved that the merchandise loss which it suffered between January 26 and March 10, 1957, must otherwise have occurred by reason of employee dishonesty within the meaning and coverage of plaintiff's insurance policy with defendant.
7. Plaintiff is entitled to recover from defendant the sum of $ 3,072.43, plus the costs of this action.
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