Opinion
No. 22636
Decided June 3, 1931.
Insurance — Robbery — Proof of loss — Sixty-day limitation runs from date extent of loss discovered, when — Policy provisions complied with, when.
A jeweler held a policy of insurance indemnifying him against robbery. The policy contained provisions requiring the assured to keep books or accounts of the merchandise insured and to furnish proof of loss at Chicago within sixty days "after discovery of loss." On April 3, 1929, his store was robbed of insured merchandise and a book containing an inventory thereof taken by the robbers. The merchant was in ailing health at the time and suffered shock and physical injury occasioned by the robbers. Proof of loss was received by the insurer on June 4, 1929. Held:
1. Under the terms of the policy the time for furnishing proof of loss began to run, not from the date of loss but from the date of discovering its extent. The assured should have reasonable opportunity for making such discovery.
2. Under the circumstances detailed, and especially because of the shock and physical injury suffered by the assured and the theft of his inventory book, he was unable, at the date of loss or soon thereafter, to ascertain its extent. The furnishing of proof of loss to and its reception by the casualty company on June 4, 1929, was a compliance with the provisions of the policy.
ERROR to the Court of Appeals of Stark county.
One Nathan Wolinsky, engaged in the jewelry and loan business, carried a $2,000 robbery insurance policy with the defendant in error. Wolinsky died about the 9th day of July, 1929, and the plaintiff in error, Lena Wolinsky, was appointed his executrix. She instituted an action in the court of common pleas against the casualty company seeking to recover for loss of merchandise contained in Wolinsky's storeroom at Canton, Ohio, occasioned by a robbery committed about 3:15 p. m., on April 3, 1929, while the policy was in full force and effect. In her petition the executrix set forth the policy agreement, the allegation of robbery, and the loss of merchandise thereby from the store of the insured in an amount exceeding $4,000. She alleged in her petition that proof of loss had been duly filed with the defendant company and that she had duly performed all the conditions to be performed on the part of the insured.
The casualty company answered and admitted the issuance of the policy indemnifying Wolinsky against loss occasioned by robbery; it admitted the robbery, but denied that proof of loss was furnished it and denied that any goods were taken of any value. As a second defense the casualty company pleaded that the policy contained a condition that the insured should keep proper and accurate books of account of the merchandise on hand; that the policy contained a condition that the company shall not be liable for loss "unless books and accounts are kept by the assured and the company can accurately determine the amount of the loss therefrom."
One defense made by the defendant in error company is that, since no complete and proper books of account were kept of the merchandise on band under the foregoing provision, the company was not liable. The cause was tried to a jury and a verdict rendered in favor of the executrix for the full amount of the face of the policy and judgment therefor was rendered by the trial court. The Court of Appeals reversed the judgment of the common pleas court upon the ground that "the plaintiff below failed to furnish notice of the loss therein sustained to the * * * defendant below within sixty (60) days from the date of said loss which was required by the conditions of the policy of insurance." The Court of Appeals thereupon rendered final judgment in favor of the casualty company. Upon the allowance of the motion to certify, the cause is here for review.
A brief résumé of the facts is necessary to the proper application of the law in this case. Wolinsky, a man about 67 years of age, was engaged in the jewelry and loan business in Canton. At the time of the robbery he was in ailing health. He had a daughter who was an assistant in his store. On the afternoon of April 3, 1929, he was assaulted in his storeroom and both he and his assistant were bound with ropes. Wolinsky's safe in the meantime was robbed of jewelry. The safe contained a compartment in which the jewelry that he bought and sold was placed, together with what the witness denominated a "black book" containing an inventory of this jewelry; this book and jewelry were kept separate and apart from the compartments in which the pawn transactions were kept. In robbing the safe the robbers not only took the jewelry from this compartment but also took the book containing the inventory. An alarm was soon given, and Wolinsky was found seriously injured, suffering from pain, and complaining of injury to his abdomen occasioned by the treatment received at the hands of the robbers. Police notified of the robbery responded to the alarm. The testimony tends to disclose that at that time Wolinsky was in such a state of nervousness and shock that while he knew that a loss had occurred from theft of his jewelry he was unable for some time, in view of his condition and the loss of his inventory book, to determine the amount of the loss. The proof of the loss, showing the amount and value of the goods stolen, was put in the post office at Canton on June 3, 1929, and was received by the casualty company on the following day.
Mr. Harry Nusbaum, for plaintiff in error.
Mr. A.H. Elliott, for defendant in error.
Two questions of fact are presented upon this record, both of which by the general verdict of the jury were determined in favor of the insured: (1) Was there a compliance upon the part of the insured with the condition of the policy requiring books and accounts to be kept by the assured, so that the company could determine the amount of the loss? (2) Did the assured furnish proof of loss within the time stipulated in the policy? Upon the first issue there was ample evidence sustaining the claim of the assured that such a book of account, containing an inventory of the stolen jewelry, was kept by the assured. Upon that issue the Court of Appeals felt itself disinclined to disturb the verdict.
The chief issue presented is whether the proof of loss was furnished within the time specified. The provisions in the policy relating thereto read as follows: "3. In the event of claim for loss under this policy affirmative proof of loss under oath * * * must be furnished to the company at its offices in Chicago within sixty days after discovery of loss. * * * 7. Any loss of which proof of loss as required herein has been furnished to the company shall be payable within thirty days after the receipt of such proof."
The judgment of the trial court was reversed by the Court of Appeals, as shown by its journal entry, because "plaintiff below failed to furnish notice of the loss therein sustained * * * within sixty (60) days from the date of said loss." If time is to be computed from the date of the loss, as claimed by the Court of Appeals, instead of sixty days "after discovery of loss," the judgment of the Court of Appeals should be affirmed. The condition of the policy provides that the proof must be at the company's offices in Chicago within sixty days after discovery of the loss; and the policy condition also provides that the loss "shall be payable within thirty days after receipt of such proof." That the loss occurred on April 3d is undisputed; but the testimony discloses that because of the theft of the inventory book, and because of the shock and nervousness on the part of the assured, occasioned by the robbery, the assured was unable on the afternoon of April 3, 1929, or for some time thereafter to ascertain the extent of the loss, proof of which, including the amount and value of the jewelry stolen, had to be sent to the insurer. Under such circumstances an insured should be given reasonable time and opportunity to discover the extent of the loss so that the insurer could be advised not only of the robbery, but of the amount of the loss occasioned thereby. This is manifest, since the policy provision stipulated that the loss was payable within thirty days after receipt of proof. The period of sixty days from the date of the loss expired on Sunday, June 2d; proof was deposited in the Canton post office the next day and was received by the company on June 4th, sixty-two days after the date of the loss.
It is the opinion of this court that, under the circumstances detailed in this record, the discovery of the extent of the loss and the furnishing of proof of loss to and its reception by the casualty company on June 4th was a compliance with the provisions of the policy.
For the reasons stated the judgment of the Court of Appeals is reversed, and that of the common pleas court is affirmed.
Judgment of Court of Appeals reversed and that of the common pleas court affirmed.
MARSHALL, C.J., DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.