MARYLAND CASUALTY CO. ETC. v. Weiss

156 N.E.2d 644, 129 Ind. App. 481, 1959 Ind. App. LEXIS 112
CourtIndiana Court of Appeals
DecidedApril 24, 1959
Docket18,996
StatusPublished
Cited by14 cases

This text of 156 N.E.2d 644 (MARYLAND CASUALTY CO. ETC. v. Weiss) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MARYLAND CASUALTY CO. ETC. v. Weiss, 156 N.E.2d 644, 129 Ind. App. 481, 1959 Ind. App. LEXIS 112 (Ind. Ct. App. 1959).

Opinions

Gonas, P. J.

This action was brought by appellee upon an insurance policy covering losses of money through burglary of appellee’s grocery store. It was consolidated for trial with another action which is not involved here.

It was stipulated at a pre-trial conference that appellee’s premises were burglarized within the meaning of the policy on April 11, 1954, and that cash was stolen. It' was further stipulated that the only issues to be tried were: (a) The sufficiency of appellee’s records as provided for in the policy, from which the amount of the loss could be determined; and (b) the amount of the loss and the amount for which appellant became liable.

. Trial to the court resulted in a judgment for appellee in the sum of $5000.00, the amount of the policy. Appellant’s motion for new trial was overruled and such ruling is assigned as error.

Among the grounds of the motion urged here are error in the assessment of the amount of recovery, surprise, and refusal to grant appellant a trial by jury. The argument on these grounds is not supported by any authority and under Rule 2-17 (e) and (f) no question is presented as to them. Stanley v. Gieseking (1952), 230 Ind. 690, 105 N. E. 2d 171; Stoner v. Howard Sober, Inc. (1957), [485]*485127 Ind. App. 338, 141 N. E. 2d 458; Vermillion v. Gore (1958), 128 Ind. App. 406, 148 N. E. 2d 851; Thanos v. Fox (1958), 128 Ind. App. 416, 149 N. E. 2d 315; White v. State (1958), 238 Ind. 498, 152 N. E. 2d 894.

A further ground of the motion is alleged irregularity in the proceedings of the court, but it is apparent that the only alleged irregularity is in rulings on evidence; which rulings will be discussed with reference to other grounds of the motion. In any event, this is not a proper ground of a motion for new trial under which to present questions as to rulings on the evidence at the trial. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, §1812, Comment 1, and cases there cited.

The insurance policy sued upon contains the following provisions:

“The assured shall keep records in such manner that the company can accurately determine therefrom the amount of the loss.”

Appellant argues that appellee’s records were not kept in such manner; that they are unintelligible and insufficient.

Appellee introduced in evidence records covering a period of three days, April 9th, 10th and 11th, 1954, the latter date being the date of the burglary. These records are appellee’s exhibits 3 to 12, inclusive.

It appears from the evidence that appellee’s store had three cash registers used in connection with sales, one being at each check-out counter. The clerk in charge of a register accounted each day for receipts and disbursements on a printed form prepared by the National Cash Register Company and which is designated as a Checkers Daily Report. There was entered on this form the cash register totals of sales with separate totals for groceries, meats and pro[486]*486duce. The cash in the register was counted by the checker and reconciled with the day’s sales as shown by the cash register. As money accumulated in the register during the day it was turned in to the office where it was in turn counted by the bookkeeper or head checker to ascertain that the amount corresponded with the checker’s figures on the Checkers Daily Report. On the day preceding the burglary three cash registers were in operation. The Checkers Daily Reports from the registers for that day were introduced as appellee’s exhibits 3, 4 and 5. On the day of the burglary only two registers were used and the Checkers Daily Reports for that day were introduced as appellee’s exhibits 6 and 7.

The Checkers Daily Reports were ordinarily made about an hour before closing time, in order that the employees need not stay after closing time. At closing time the register drawers were placed in a safe and the next morning the clerk counted the money in her drawer to see that it corresponded with the amount taken in, as shown by the cash register, after making out the previous day’s daily report.

The information from the Checkers Daily Reports was entered in the store office on what is designated as a daily report sheet. On this form was entered the amount of money on hand at the close of the previous day (referred to as the “starting bank”), the receipts from sales as shown by the Checkers Daily Reports, the amount of cash disbursements during the day, bank deposits, and the money on hand at the close of the day. Appellee’s exhibits 10, 11 and 12 are the daily report sheets for the day of the burglary and the two days previous thereto.

Appellant complains that the evidence does not sufficiently disclose how the figure of $9362.34, which was [487]*487the “bank” at the beginning of the day of April 11, 1954, was reached. The evidence, however, shows exactly how the figure was arrived at, and that it was verified by an actual count.

Appellee testified that, in addition to store funds taken in the burglary, he had an envelope of personal funds in the safe which was taken, but which are not claimed to be covered by the policy.

At the end of the month the sheets for the month, together with check stubs, were turned over to the appellee’s auditor.

One of appellant’s witnesses, a certified public accountant, testified that he could tell from appellee’s exhibit 12 what appellee lost in the burglary, assuming that the figures thereon were correct.

The trial court necessarily found that appellee kept records in such manner that appellant could accurately determine therefrom the amount of loss. In our opinion, the evidence fully sustains this finding and the decision of the court is not contrary to law. 45 C. J. S., Insurance, §658.

We gather from appellant’s argument that objection is not made so much to the sufficiency of appellee’s bookkeeping methods as it is to the correctness of the figures showing the money on hand at the time of the burglary, and particularly the amount of the “bank” at the beginning of the day, although the figure is supported not only by the records but by evidence of an actual count.

Appellant argues error in the sustaining of objections to three questions asked by appellant on the cross-examination of appellee and in sustaining appellee’s objections to five questions asked of one Sidney Flaxman, a witness for appellant, on his direct examination. Some mention is made in [488]*488the briefs as to the sufficiency of the objections made to the questions. However, where objections to questions are sustained, any valid objection to the questions may be urged on appeal, regardless of the objections made in the trial court. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, §1993, Comment 3, and authorities there cited.

One question asked on cross-examination of appellee by appellant was whether a certain firm of certified public accountants kept his books in the year 1953. There had been no evidence on direct examination as to the books for 1953. Appellee was later called as a witness for appellant and testified that that firm did keep his books for this period. Obviously appellant was not harmed by the ruling, even if it were to be considered erroneous. Terre Haute, etc., Traction Co. v. Stevenson (1919), 189 Ind. 100, 111, 123 N. E. 785, 126 N. E. 3;

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MARYLAND CASUALTY CO. ETC. v. Weiss
156 N.E.2d 644 (Indiana Court of Appeals, 1959)

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Bluebook (online)
156 N.E.2d 644, 129 Ind. App. 481, 1959 Ind. App. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maryland-casualty-co-etc-v-weiss-indctapp-1959.