The opinion of the court was delivered by: WALSH
The Court having heard the above case without a jury, filed its memorandum opinion, as amended, on March 31, 1960. The defendant, through counsel, on April 15, 1960, filed a motion for findings of fact and conclusions of law, and for a new trial. Oral argument on the motion was heard of May 13, 1960.
The comprehensive policy in the case here involved provided for recovery under Agreement I thereof for losses due to the dishonesty of unidentifiable employees, and under Agreement VII thereof for losses due to burglary. The plaintiff proceeded by claiming recovery under one or the other of these Agreements on the basis of alternative theories of proof. However, to recover under the provisions of Agreement I, the possibility of loss by burglary would have had to be negated. But, since there was evidence of burglary which the Court could consider, the plaintiff did not attempt to negate the possibility of burglary, but affirmatively advanced it as an alternative basis of proof of loss under Agreement VII.
Under the plaintiff's theory, as it is believed to be relied on, if the Court did not find that there was sufficient evidence of loss by means of burglary, then the Court itself would have excluded the only other explanation of loss needed to prove the claim under Agreement I.
The Court is satisfied that the plaintiff employed its alternative theories correctly in this case under the facts as they existed.
The Court finds that the findings and judgment in the case were in accordance with and consistent with the evidence and the facts as brought out at the trial, and that the findings and judgment are in accordance with the law.
Accordingly, the motion for new trial is denied.
While it is considered that the opinion filed by the Court on March 31, 1960, as amended, sufficiently sets forth findings of fact and conclusions of law so as to meet the requirements of Rule 52(a) and (b), of the Federal Rules of Civil Procedure, 28 U.S.C.A., upon defendant's motion, the Court makes the following findings of fact and conclusions of law:
1. This is a suit to recover as an insured loss the invoice value of certain garments allegedly taken from plaintiff's Washington, D.C. retail clothing store sometime early in 1957. The policy, No. CDD28650B, was a comprehensive dishonesty, disappearance, and destruction policy, and the pertinent provisions thereof provided for recovery, under Insurance Agreement I, for loss through dishonesty of unidentifiable employees, and, under Insurance Agreement VII, for loss due to burglary.
Agreement VII also provided that the premises where the merchandize loss occurred were to be equipped with an American District Telegraph ('ADT') Burglar Alarm System.
By endorsement, dated March 7, 1956, the terms 'employee' or 'employees' under Insuring Agreement I were extended to include plaintiff's president, vice-president, treasurer, and secretary.
2. Sometime between January 26 and March 10, 1957, plaintiff suffered a loss from its store consisting of 44 garments having a total invoice cost of $ 3,072.43. On the first of those dates plaintiff's semi-annual store inventory was begun, and during that inventory the garments were found to be in the second floor salesroom of the store. On the second date a special stock audit, prompted by the discovery that certain suits were not found in the salesroom, was completed and the loss was discovered.
3. Subsequently plaintiff submitted to defendant a claim in the amount of $ 3,224.43 for indemnification of the loss. The claim was ...