&aelig v. Lipsitz

• Decision Date: 22 February 1908
• Citation: 60 S.E. 531,130 Ga. 170
• Parties: ÆTNA INS. CO. v. LIPSITZ.
• Court: Georgia Supreme Court

60 S.E. 531

130 Ga. 170

ÆTNA INS. CO.

v.LIPSITZ.

Supreme Court of Georgia.

Feb. 22, 1908.

1. Insurance — Action on Policy —Inventory.

Where the only complaint as to an inventory required by an insurance policy to be taken of the stock of goods insured is that part of it was in Hebrew, it not being stated what portion thereof was in such language, and it not appearing from the record that any portion of the inventory was in Hebrew, such complaint is without merit.

2. Same—Iron-Safe Clause.

It is a sufficient compliance with the usual "iron-safe clause" of a fire policy, in respect to the keeping of books, if from the books kept by the insured, with the assistance of those who understood the system on which they were kept, the amount of purchases and the amount of sales can be ascertained, and cash transactions distinguished from those on credit. There was no merit in the general exception to the instructions given to the jury on this subject.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, § 853.]

3. Writ of Error—Instructions—Harmless Error.

As there were admittedly no conflicts in the evidence to be reconciled by the jury, the charge on this subject, even if erroneous, was not hurtful.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4220.]

4. Same—Assignments of Error—Waiver.

Assignments of error not referred to in the brief of counsel for the plaintiff in error will be considered as abandoned.

[Ed. Note.—For cases in point, see Cent. Dig vol. 3, Appeal and Error, §§ 4256-4261.]

Lumpkin, J., dissenting.

(Syllabus by the Court.)

Error from Superior Court, Tattnall County; B. T. Rawlings, Judge.

Action by Wolf Lipsitz against the Ætna Insurance Company. Judgment for plaintiff. Defendant brings error. Affirmed.

On April 15, 1904, the Ætna Insurance Company issued to Wolf Lipsitz a policy for $3,-000 on a stock of merchandise in the town of Collins, to continue in force for one year. A fire occurred March 13, 1905, greatly damaging the goods; and, upon refusal of the company to pay the loss, the assured entered suit on the policy. Breach of the "iron-safe clause" was pleaded. Upon the trial the evidence submitted in behalf of plaintiff tended to show that on the night of the fire he was in the town of Hagan, where he resided, some distance from Collins, and knew nothing of the fire till the next morning; that the value of the stock of goods in the store at the. time of the fire was between $4,000 and $5,-000, and that, while the fire consumed few, if any, of the goods so that they could not be identified, they were damaged by fire to the extent of 85 per cent of their value. The policy, which was put in evidence by plaintiff, contained this stipulation: "The following covenant and warranty is hereby made a part of this policy: (1) The assured will take a complete itemized inventory of stock on hand at least once each calendar year; and unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date shall be returned. (2) The assured will keep a set of books, which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory as provided for in first section of this clause, and during the continuance of this policy. * * * In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon."

The plaintiff testified in behalf of himself; and so much of his testimony as bears on the questions presented for adjudication was as follows: "The total loss I sustained was about $3,500. * * * I had the stock in there. * * * As to what I had in there before the fire, I have got to go by what I had on the books. I know the goods that I bought. * * * I did not know the value just before the fire. I know I had a big stock of goods before, and I always [had] $5,000 or $6,000 worth of stock on hand all the time. * * * I don't know how much I did have. Concerning the books and papers on hand in the store at the time of the fire to indicate the exact amount of goods I had on hand, I had a book to put the cash on when I sold goods. Whether my books would show (the books that I saved from this fire) the amount of such goods I had on hand at the time of the fire—I couldn't tell that. I kept my cash book showing cash sales I made every day. I kept the day's cash in my cash book. The cash book was used so I might know what business I was doing. The cash book contained a complete list of cash sales. Daily sales. All the cash sales. * * * I swore to the insurance company that what was in my store at the time of the fire was worth $4,200. I know it because the books show it. * * * The manner in which I arrived at * * * the amount of loss was taking stock after the fire. The stock of goods was damaged 85 per cent. * * * As a matter of fact, I don't know that I could take my set of books and show the exact value of my stock of goods, the exact value of my entire stock of goods. I don't know whether I could or not. My ledger was used to put my bills in, what I bought. I entered my purchases in the ledger, nothing else. These are the only books that I kept I am of Hebrew descent I kept some of my books in Hebrew. My cash book was kept in Hebrew, a part of it. Some of the cash book that I turned over to the company was kept in Hebrew, and with some it I did the best I could. The book that I kept as a cash book was kept as it is now. The book shows how it was kept. It is as I kept it. * * * Some of the entries are in Hebrew. * * * I do not recall whether or not my cash sales were made up and entered on my cash book. I guess I put down all the daily sales in the book. * * * Whatever I taken in I put it down there. * * * I entered my goods that I bought in my ledger. Not all of them. I got a lot of goods I didn't put down there. There were some bills I hadn't put down yet. I put them down when I get the bills. * * * I think I put down all of the bills from the time of the insurance until the fire occurred. As I said, there were some bills that were not put down in the books, because I did not put down the bills until I got them. * * * I arrived at the value of the goods in the stock [at the time of the fire] by taking stock, and then I knew what I got for them, and what I gave for them, and how much I lost. * * * I didn't do much credit business. I did some; very little. I haven't done much credit business, and I don't really know whether the books would show it or not. * * * When I made an entry of the collection of any goods sold, I don't know exactly where it went. I don't think I kept much record of it. I did't keep any record of the receipts I got from credit sales. I didn't keep any record of that at all, not by itself. I did a cash business. From the time that I took out this policy until the fire I did very little credit business. I did do some. Between the time that I took out the policy and the fire there were very little payments. When I did any credit, I put it in the ledger; and, when I paid it, on the other book, the cash book. I said I made very little entry of it. It is on the ledger, what little credit business I done."

At the conclusion of the evidence submitted for the plaintiff, the defendant moved for a nonsuit The motion was overruled, and the defendant excepted pendente lite. The plaintiff, being recalled as a witness for the defendant, testified that he kept only two books—a cash book, upon which he entered his cash transactions, and a ledger, in which the bills of goods purchased by him were entered, as well as the accounts of goods sold on credit. He further testified: "None of the credit sales I made during 1904 were paid before the fire." The defendant introduced in evidence an itemized inventory of the plaintiff's stock of merchandise, taken by him February 24, 1904, according to which the value of the stock then on hand was $5,5190.13. An itemized inventory, taken by the plaintiff immediately after the fire, of the goods in stock at that time, was also introduced by the defendant, according to which the value of the stock in the store at the time of the fire was $4,224.90. The defendant put in evidence the cash book kept by the plaintiff, which purported to show a daily entry of the aggregate amount received for daily cash sales of merchandise for each business day from February 1, 1904, to the date of the fire, without giving any of the items of goods sold; such sales footing up the sum of $7,205.50. The defendant also put in evidence the ledger kept by the plaintiff. There appeared on the ledger the names of 47 different persons who were, respectively, charged with a stated sum for "Mdse." on given dates intervening the date of the inventory and January 1, 1905. No items of merchandise sold to them were specified. The aggregate of these charges was $470.65. The sum of $39.85 appeared to have been collected on these accounts up to January 1, 1905. It did not appear from the ledger that any sales were made on credit after 1904, or that any money was collected after that year on credit sales previously made. There were entries in the ledger of the names of individuals or firms from which it appeared goods were bought at stated times from the date of the inventory to the date of the fire; the gross price being stated in each instance, without giving the items of the goods purchased. The character or kind of goods purchased were in some instances, however, indicated by the entry, as will appear from the following copies of entries: "May Shoe Company. 1904. Paid by check 92.30. 8 26 Bill rendered...