This is an appeal by Fireman's Fund Insurance Company from an adverse decision of the Pulaski County Circuit Court, Second Division, in a suit by Fort Smith Pizza Company on an insurance policy.
The appellant insurance company entered into a contract with the appellee pizza company, agreeing to insure the appellee with a coverage of $2,500 against loss of money and securities by the actual destruction, disappearance or wrongful abstraction thereof within the premises or within any banking premises or similar recognized places of safe deposit.
The appellee alleged in its complaint:
A jury was waived and the case was tried before the trial judge sitting as a jury. Judgment was rendered for the full amount sued for, together with statutory penalty and attorney's fee, and on appeal to this court the appellant relies upon the following point for reversal:
We agree with the appellant. The appellee attempted to prove that the separate deposits listed in its complaint, totaling $1,757.57, mysteriously disappeared from the night depository of the Merchants National Bank of Fort Smith after being deposited there. We find no substantial evidence in the record before us that any part of said amount ever reached the bank.
The record reflects that the usual procedure followed at the three pizza parlor
Mr. George Batchelor, a certified public accountant, testified that he was doing the accounting work for the appellee during the time of the alleged loss. He identified daily reports with copy of deposit slips attached as having been sent in by the manager of the Fort Smith Parlor and testified that all the managers followed the same procedure. Mr. Batchelor testified that the amounts shown on the reports and copy of deposit slips made out and sent in by Mr. Blaloch, the local manager at Fort Smith, were never credited by the bank to appellee's account.
Mr. John Bauman testified that he was general manager of three Shakey's Pizza Parlors owned by Mr. Murry, including the one at Fort Smith. He testified that a Mr. Blaloch was the local manager at Fort Smith and that he went to Fort Smith on Saturday, July 22 and discharged Mr. Blaloch. He testified that he went with Mr. Blaloch to the bank and they deposited the previous day's receipts in the night depository; that the deposit slips for this deposit were dated July 21, and that this deposit was made on the 22nd and was credited to the account of the appellee the following Monday, July 24.
Mr. Ike Murry, majority stockholder and president of the appellee, testified, in part, as follows:
On cross-examination Mr. Murry testified that the local manager of the business in Fort Smith would mail the daily reports, together with copy of deposit slip to him in Little Rock. He also testified as to reasons for discharging the Fort Smith manager, but further recitation of the testimony would add nothing but volume to this opinion.
The only person who knew what went with the money indicated on the daily reports and copies of the deposit slips made out and mailed from Fort Smith to Little Rock by Mr. Blaloch, was Mr. Blaloch himself. He was the one who made out the reports indicating that the money had been or would be deposited in the bank and he was the one charged with the responsibility of depositing the money in the bank. Mr. Blaloch had been discharged and had gone to Tennessee before it was ever discovered that the amounts he reported had been or would be deposited in the bank were never credited to the appellee's account.
The appellee relied entirely on Ark. Stat.Ann. § 28-928 (Repl. 1962) which provides as follows:
Mr. Blaloch did not testify in this case and his daily reports made out and mailed to his superiors in the regular course of business indicating the amount of money he collected and had or would deposit in the bank, certainly are no evidence at all that he ever reached the bank with the money he indicated he had or would deposit. It is clear from the evidence, including the daily records and deposit slips, that the daily records or reports were made out at the end of each day's business reflected therein. The deposit slips were dated the same day the records were dated and obviously the deposit slips were made out before the deposit was actually made. The most these business records of the appellee could show is the amount of money on hand which the appellee's manager indicated that he would deposit in the bank.
It appearing from the record that the facts in this case might be more fully developed on retrial, the judgment of the trial court is reversed and this cause remanded for that purpose.
BYRD and HOLT, JJ., dissent.
BYRD, Justice (dissenting).
As I read the majority opinion I understand the facts to be that the manager Blalock in the regular course of his daily business at the end of each day made out a deposit slip showing the amount of money deposited or to be deposited in the bank account and also a report which he mailed to the home office in Little Rock together with the deposit slips. I also understand that the deposits were made as soon after
Even under the common law shopbook rule, the business records here introduced would have been sufficient evidence of delivery of the deposits to the night depository. See Mansfield v. Gushee, 120 Me. 333, 347, 114 A. 296 (1921). It was there held:
In 30 Am.Jur.2d Evidence § 950, the stated purpose of the Business Record Statutes such as Ark.Stat.Ann. § 28-928 (Repl.1962) is as follows:
In Scowcroft & Sons Co. v. Roselle, 77 Idaho 142, 289 P.2d 621, 55 A.L.R.2d 1 (1955), there was involved an action by a wholesaler to recover for merchandise shipped and delivered to a store operated by the retailer's agent. Under a statute similar to ours the court held:
In our own case of Harrison v. State Farm Mutual Insurance Co., 230 Ark. 630, 326 S.W.2d 803 (1959), the question involved was whether State Farm had canceled an insurance policy by mailing a notice of cancellation addressed to Harrison. We there held that the business records of State Farm were evidence under Ark. Stat.Ann. § 28-928 of the mailing of the notice of cancellation.
The record here shows that the whereabouts of manager Blaloch was unknown to appellee at the time of trial. Under these circumstances it appears to me that the records kept by Blaloch showing the deposits that he either made or was to make within a reasonable time of the making of the business record entry are sufficient either under common law or the statute to show delivery of the deposits to the night depository.
Since business records of State Farm in the Harrison case constituted evidence to show that State Farm had properly addressed, stamped and deposited a letter of cancellation in the post office, I am at a loss to understand why the records here are not sufficient to show a placing of the daily deposit in a bank's night depository.
Therefore, I dissent.
HOLT, J., joins in this dissent.