Calloyan v. American Cas. Co Of Reading

• Decision Date: 05 March 1947
• Docket Number: No. 470.,470.
• Citation: 51 A.2d 678
• Parties: CALLOYAN v. AMERICAN CASUALTY CO OF READING, PA.
• Court: D.C. Court of Appeals

51 A.2d 678

CALLOYAN

v.AMERICAN CASUALTY CO OF READING, PA.

No. 470.

Municipal Court of Appeals for the District of Columbia.

March 5, 1947.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Antranik Calloyan against the American Casualty Company of Reading, Pennsylvania, to recover on a burglary and robbery policy. From a judgment denying recovery, the plaintiff appeals.

Affirmed.

Henry F. Lerch and Wilton H. Wallace, both of Washington, D. C., for appellant.

Richard W. Galiher, of Washington, D. C. (Green & Herbert, of Washington, D. C., on the brief), for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

HOOD, Associate Judge.

This is an appeal from a judgment denying recovery on a burglary and robbery insurance policy. The policy, covering plaintiff's jewelry store, provided protection against ‘interior robbery’ to the extent of $1,500 and against ‘open stock burglary’ to the extent of $3,000. Plaintiff testified that while he was alone in the store two ostensible customers entered and, after examining a ring, at the point of a gun took from him the ring, valued at $17, and $3,000 in cash. It is clear from a reading of the policy that the loss was not covered by the ‘open stock burglary’ clause but came within the provision of the ‘interior robbery’ clause, and any recovery must be limited to $1,500.

The insurance company, without admitting the robbery, rested its defense on a provision of the policy, the material part of which reads: ‘The Company shall make no payment unless the amount of loss can be accurately determined by the Company from the insured's records.’ The issue developed at the trial and presented here is whether the insured's records were such that the loss could be determined from them.

The insured's business was sale of jewelry and repair of watches. He had no employees and his gross income was about $12,000 a year. His records of cash receipts consisted of two books, one showing dails sales and the other showing watch repairs His only record of disbursements consisted of receipts and invoices. He did no credit business and paid all bills in cash or by money order. He kept no inventory and, at least as far as the record shows, never prepared a profit and loss statement or a general statement of assets and liabilities. He had no bank account and kept his cash in a cigar box in a safe in the store. It was from this box that the robbers took the cash. Plaintiff testified that in the box was $2,000 cash which he had accumulated in his business and $1,000 cash which he had borrowed from a friend about four weeks prior to the robbery. No records were kept indicating the amount of cash in the safe and the insured had no record of the $1,000 loan. The lender testified he made the loan in cash and received a receipt from the insured but the receipt had been misplaced at the time of the trial.

The authorities are generally in accord that a provision such as the one in question is valid and reasonable, its purpose being that the insurer may determine an alleged loss accurately and fairly and save itself from payment of fraudulent or exaggerated claims; that such provision is to be interpreted liberally in favor of the policy-holder and a substantial compliance is all that is required; that no particular form of records or bookkeeping is required; and that any records, however informal or crude, are sufficient, provided that from such records the loss may be determined with reasonable certainty. Absolute accuracy is not required. But such records are not sufficient if from them the loss cannot be determined without resorting to extraneous sources, especially the oral testimony of an interested party. For cases on...