New Amsterdam Casualty Co. v. Iowa State Bank

• Decision Date: 14 July 1924
• Docket Number: No. 6590.,6590.
• Citation: 1 F.2d 196
• Parties: NEW AMSTERDAM CASUALTY CO. v. IOWA STATE BANK.
• Court: U.S. Court of Appeals — Eighth Circuit

1 F.2d 196 (1924)

NEW AMSTERDAM CASUALTY CO. v. IOWA STATE BANK.

No. 6590.

Circuit Court of Appeals, Eighth Circuit.

July 14, 1924.

Oscar Strauss, of Des Moines, Iowa (Brockett & Strauss, of Des Moines, Iowa, on the brief), for plaintiff in error.

H. W. Byers, of Des Moines, Iowa (Howard J. Clark and Gregory Brunk, both of Des Moines, Iowa, on the brief), for defendant in error.

Before LEWIS and KENYON, Circuit Judges, and FARIS, District Judge.

KENYON, Circuit Judge.

This case has heretofore appeared in this court and is reported in 277 Fed. 713. A very complete statement of facts is there found to which reference is made. It will be sufficient here to say that the action was to recover upon a bank burglary and robbery policy for the loss of money and securities stolen from defendant in error bank by robbers.

The judgment entered upon the first trial in the United States District Court, Southern District of Iowa, in favor of defendant in error, was reversed by this court; the court holding that under the policy sued on plaintiff in error was responsible only for the cash and securities taken by the robbers from the counters and cages of the bank and not for that taken from the safe. In the present action the district court narrowed the controversy to practically a single issue, viz.: How much of money and securities were taken by the robbers from the cages and counters of the bank?

The jury made special findings under the direction of the court that $16,000 of cash and $6,000 of bonds were stolen from the counters and cages on the date of the robbery, to wit, March 25, 1919, and returned a verdict for the full amount of the policy, $20,000 and interest from April 22, 1919. The policy in question was issued to the Iowa State Bank on or about the 26th day of December, 1918. Its purpose was to indemnify the bank against loss of money and securities by burglary or robbery, not to exceed the sum of $20,000.

Reference will hereafter be made to certain particular features of said policy, it being unnecessary to set it out either in full or in part. A reversal of the judgment entered by the trial court is asked, and four propositions are urged for such reversal. We consider them in the order of their presentation:

First. The refusal by the court to grant plaintiff in error permission to file its second amendment to the answer setting up as a defense under the policy that the books of the bank had not been so kept that the loss could be accurately determined therefrom. This amendment was offered at the close of plaintiff in error's evidence. The case had been once tried, and had been in court for two years, but the particular issue involved in the proffered amendment had not been raised. The matter of permission to file the amendment was within the sound discretion of the court, and the refusal to grant the same, under the circumstances, was no abuse thereof. Hartley v. Lapidus & Holub Co., 216 Fed. 92, 132 C. C. A. 336; Lange v. Union Pac. R. Co., 126 Fed. 338, 62 C. C. A. 48; Gubbins v. Laugtenschlager et al. (C. C.) 75 Fed. 615; McKemy et al. v. Supreme Lodge, A. O. U. W., 180 Fed. 961, 104 C. C. A. 117; Stillwagon v. Baltimore & O. R. Co., 159 Fed. 97, 86 C. C. A. 287. Further, the question presented by the amendment inheres to some extent in the second proposition urged by plaintiff in error, to which we now refer.

Second. It is insisted that there is no competent evidence in the record to support the cause of action of defendant in error, for the reason that the contract of insurance provided the character of evidence by which the amount of loss must be shown, and plaintiff in error insists that no other evidence could be offered, and that the evidence offered was incompetent, because it was not the evidence of the bank books, and that the court should have directed a verdict for it on this ground. We do not understand that, under the terms of the policy no evidence could be offered to show the losses except the books of the bank. Subdivision (c) of No. 2 of Special Agreements in the bond provides: "When Company Not Liable. * * * If the books and accounts of the assured are not so kept that the loss may be accurately determined therefrom by the company."

It seems to be the theory of plaintiff in error that under this provision it was the duty of the bank to keep books from which the exact loss might at any time be ascertained. If this is what the policy means, it would be necessary at every moment of the day to figure out the amount of money and securities on the counters and in the cages and preserve it in some bank book, so that, if any robbery occurred, there would be a book record. Evidently in practical banking this would be well-nigh impossible. Such a construction of this provision would make practically impossible any recovery for a loss under the policy. Certainly this was not the intention of either party to the contract. The policy does not require any particular kind of books to be kept, and it does not appear that it was customary for banks to keep books which would show the amount of money and securities on hand at any particular moment. No strained or impracticable construction should be indulged in as to this provision. All that is required is a substantial compliance therewith. From the record it appears that the usual bank books were kept, including what was known as a teller's book, and these books did show in a general way the amount of money and securities in the bank. They were kept in the usual and ordinary way that bank books are kept, and the general loss in a robbery or burglary could fairly be ascertained therefrom. Indeed, it appears from the record that plaintiff in error's agent, Dudley, had no difficulty by examination of defendant in error's books in making up a...