APPEAL from the Circuit Court of Jackson County; the Hon.
PEYTON H. KUNCE, Judge, presiding.
MR. JUSTICE BARR DELIVERED THE OPINION OF THE COURT:
Upon a jury verdict, by the Circuit Court of Jackson County, judgment was entered in favor of plaintiff, Daniel Grocer Company, a corporation, and against defendant, New Amsterdam Casualty Company, a corporation, in the amount of $3,649.62 and costs. This appeal followed.
The action is one on a blanket position bond issued by defendant to recover a loss allegedly sustained by plaintiff through fraudulent or dishonest acts committed by one of its employees. Defendant's post trial motion was denied except that its renewed motion for a directed verdict against the third-party defendant, as contained in said post trial motion, was granted, and judgment was entered in favor of defendant-third-party plaintiff, New Amsterdam Company, and against third-party defendant, George Lawwill. No appeal was filed by said third-party defendant.
The trial court denied the post trial motion of the plaintiff for allowance of attorney fees. Plaintiff cross appeals.
In 1958, the defendant executed a blanket position bond in favor of plaintiff, which bond provided, in part, as follows:
The underwriter * * * agrees to indemnify the Insured against any loss of money or other property which the Insured shall sustain through any fraudulent or dishonest act or acts committed by any of the Employees, acting alone or in collusion with others * * *
Section 2. This Bond does not apply to loss, or to that part of any loss, as the case may be, the proof of which, either as to its factual existence or as to its amount, is dependent upon an inventory computation or a profit and loss computation; provided, however, that this paragraph shall not apply to loss of money or other property which the Insured can prove, through evidence wholly apart from such computations, is sustained by the Insured through any fraudulent or dishonest act or acts committed by any one or more of the Employees.
LOSS CAUSED BY UNIDENTIFIABLE EMPLOYEES
Section 4. If a loss is alleged to have been caused by the fraud or dishonesty of any one or more of the Employees and the Insured shall be unable to designate the specific Employee or Employees causing such loss, the Insured shall nevertheless have the benefit of this Bond, subject to the provisions of Section 2 of this Bond, provided that the evidence submitted reasonably proves that the loss was in fact due to the fraud or dishonesty of one or more of the said Employees * * *.
The bond remained in force through June, 1963.
The third-party defendant, George L. Lawwill, was an employee of plaintiff and manager of its White City Market store in Herrin, Illinois, from the day it was opened during or before 1958. His duties included causing store receipts to be deposited in the local bank and making written weekly reports thereof to plaintiff's office at Murphysboro, Illinois. Overages or shortages were required to be listed in the reports. On April 27, 1963, the depository bank informed third-party defendant Lawwill of a $1,000.00 shortage in his deposit. This he corrected by taking that amount from the cash on hand at the store and depositing same in the bank to conform the actual deposit to the deposit slip. Other shortages appeared thereafter until about June 9, 1963, when the arrearage increased to more than $3,600.00. Each week during this time Mr. Lawwill signed and returned weekly reports, false to the extent that the shortages were not revealed to his employer, the plaintiff herein.
However, on June 12, 1963, Mr. Lawwill did by telephone advise plaintiff of the total arrearage and of his concern about same. He subsequently admitted that the weekly reports were incorrect but denied taking any of the monies. He could not account for the apparent loss or shortage. Investigation subsequently showed a shortage of $3,649.62 to and including the week of June 12, 1963.
After a telephone call to his insurance broker under date of July 19, 1963, plaintiff, by J.C. Daniel, its Vice President, forwarded a letter and affidavit of loss to defendant. The letter reads in part "While we have completed this affidavit, we are not reporting to you that Mr. Lawwill himself embezzled this money." It ...