Pelitsie v. National Sur. Corp. of N.Y.

• Decision Date: 03 April 1956
• Parties: Joseph PELITSIE d/b/a Joe's Pin Up Bar, Respondent, v. NATIONAL SURETY CORPORATION OF NEW YORK et al., Appellants.
• Court: Wisconsin Supreme Court

Page 327

76 N.W.2d 327

272 Wis. 423

Joseph PELITSIE d/b/a Joe's Pin Up Bar, Respondent, v. NATIONAL SURETY CORPORATION OF NEW YORK et al., Appellants.

Supreme Court of Wisconsin.

April 3, 1956.

Curley & Sheedy, Milwaukee, for appellants.

Wiernick & Zurlo, Milwaukee, Clinton A. Boone, Milwaukee, of counsel, for respondent.

CURRIE, Justice.

The policies of burglary insurance upon which suit was brought contain the usual standard exclusion clauses. The exclusion clause material to this appeal read as follows:

'This policy does not apply:

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* * *

'(d) Unless records are kept by the insured in such manner that the company can accurately determine therefrom the amount of the loss.'

The sole issue on this appeal is whether the trial court should have determined as a matter of law that the plaintiff insured failed to substantially comply with said record-keeping clause of the policies.

It is the defendants' contention that the plaintiff did so fail to comply with said clause as a matter of law, and, therefore, it was error for the learned trial court not to have granted defendants' motion for a directed verdict dismissing the action.

The facts with respect to this issue are not in dispute except in one minor particular. Plaintiff usually kept on hand a cash fund for cashing payroll checks for his patrons of approximately $3,000 or a little less. Whenever a substantial portion of such cash fund had been used for cashing such checks, plaintiff would take such checks to his bank and there deposit them in a checking account, and at the same time he would write his own check upon such account to 'cash' for the amount he deposited, receiving cash for the same with which he would replenish such cash fund. Such cash fund, together with any checks cashed therefrom, were locked up in the insured safe over night. It was plaintiff's custom at the close of business each night to total the amount of such cash and checks on the adding machine and write the total on a 3 X 5 inch scratch pad. One reason why the total fluctuated from time to time was that the plaintiff sometimes paid bills with cash taken from such fund. At other times he paid bills out of the funds in the cash register. The cash register funds were kept separate from the check cashing fund and recovery is only sought in the instant action for the loss of the check cashing fund.

Plaintiff's last bank deposit was made on February 5, 1954, and he testified that on the night of that day he totalled the amount of cash and checks on hand in the fund in question and found the aggregate to be $2,922. He further stated that he, together with his bartender, repeated this process at closing time on the evening of February 9, 1954, and arrived at the same total of $2,922, which total he wrote on a blank page of the scratch pad. No attempt was made to arrive at a separate total for the cash and the checks, but plaintiff's best guess as to the amount of the checks, apart from the cash, was $600 to $800.

On the morning of February 10, 1954, after the burglary had been discovered and the police called, a claims adjuster for one of the two defendant insurance companies called. Plaintiff testified that he then had in his possession such scratch pad notation as to the total being $2,922. On the other hand, the adjuster testified that he inquired of the plaintiff as to the amount of checks and cash which were burglarized from the safe and that plaintiff then took a small blank scratch pad and wrote a figure of approximately $2,800 or $2,900 on it and then discarded the sheet on which such total was written. Plaintiff further testified that after the adjuster left plaintiff looked for the scratch pad sheet and could not find it. Such conflict in the testimony must be resolved in plaintiff's favor in considering whether it was error for the trial court to have failed to direct a verdict. This is because a verdict could only be directed against plaintiff if plaintiff's evidence, giving it the most favorable construction it will reasonably bear, was insufficient to justify a verdict in plaintiff's favor. Radmann v. Chicago, M. & St. P. Ry. Co., 1890, 78 Wis. 22, 26, 47 N.W. 97.

Plaintiff further testified that he recouped either $180 or $182 of such loss by having personally remembered the details regarding two of the payroll checks that had been cashed, and notifying the drawers thereof. As a result the drawers stopped payment on the originals and paid the plaintiff the amount of such two checks. It is apparent that the jury arrived at its figure of $2,740, as being the amount of loss, by subtracting the sum of $182, representing the amount so recouped, from the total of $2,922.

Many cases have arisen where the courts have been called upon to construe record-keeping clauses identical with, or similar to, those contained in the two policies issued to the plaintiff by the defendants, and to determine whether there was compliance by the insured with such clauses. For such authorities, see 5 Appelman, Insurance Law and Practice, pp. 107 et seq., secs. 3025-3027; 5 Couch, Cyclopedia of Insurance Law, pp. 3592 et seq.,...