No. 6094 | 5th Cir. | Dec 4, 1931
This is an appeal from a verdict and judgment awarding recovery in a suit upon a policy of insurance issued upon appellees’ lumber yard in the village of Cleveland, Ga.
While in the court below many issues were fought out, the verdict of the jury has disposed of all of them except the issue arising on the “iron safe clause,” and having to do with whether plaintiffs’ records constituted a set of books within the meaning of the policy, defendant having objected to their introduction and having requested a directed verdict.
The question is presented here from two points of view: (1) That the memoranda and papers offered by plaintiffs as constituting their set of books were not admissible because not the best evidence of what they purported to reflect: (2) that the court erred in submitting to the jury as an issue of fact whether they constituted a set of books; that under the evidence the jury should have been instructed that they did not.
Disposing first of the point upon the admissibility of the offered papers, we think it clear that it is without merit. In view of defendant’s position that they had not complied with the iron safe clause, plaintiffs not only had the right, they were compelled, to offer these documents and memoranda as a necessary part of their case. They were the best evidence, in fact the only evidence, admissible on that issue; they were made so by the terms of the policy.
The hooks were indeed informal; in fact, in a literal sense they were not books at all, for they were not bound. In the liberal sense of the words, however, established in the law, they were books. “It is not necessary that the books should be kept according to any particular system, nor that they should be such a scientific system of books as would satisfy an expert accountant in a large business house in a city.” Liverpool & London & Globe Ins. Co. v. Ellington, 94 Ga. 785" court="Ga." date_filed="1894-10-22" href="https://app.midpage.ai/document/liverpool--london--globe-insurance-v-ellington-5565929?utm_source=webapp" opinion_id="5565929">94 Ga. 785, 21 S. E. 1006; Ætna Life Ins. Co. v. Johnson, 127 Ga. 491" court="Ga." date_filed="1907-02-14" href="https://app.midpage.ai/document/ætna-insurance-v-johnson-6466064?utm_source=webapp" opinion_id="6466064">127 Ga. 491, 56 S.E. 643" court="Ga." date_filed="1907-02-14" href="https://app.midpage.ai/document/ætna-insurance-v-johnson-5575629?utm_source=webapp" opinion_id="5575629">56 S. E. 643, 645. “The purpose of the requirement was that in ease of loss or damage tho assured would have kept such book accounts of his invoices, purchases, and sales as would show the amount of goods on hand at the time of the fire, and thus furnish data from which to make a reasonable estimate of the loss or damage.” Id. Substantial compliance with tho provision is all that is essential. N. Y. Underwriters Fire Ins. Co. v. Malham (C. C. A.) 25 F.(2d) 416; Mass. Fire & Marine Ins. Co. v. Schneider (C. C. A.) 28 F.2d 658" court="5th Cir." date_filed="1928-11-03" href="https://app.midpage.ai/document/massachusetts-fire--marine-ins-v-schneider-6838332?utm_source=webapp" opinion_id="6838332">28 F.(2d) 658; Home Ins. Co. v. Williams (C. C. A.) 237 F. 171" court="5th Cir." date_filed="1916-11-13" href="https://app.midpage.ai/document/home-ins-v-williams-8801103?utm_source=webapp" opinion_id="8801103">237 F. 171; Liverpool v. Kearney, 180 U.S. 132" court="SCOTUS" date_filed="1901-01-07" href="https://app.midpage.ai/document/liverpool--london--globe-insurance-v-kearney-95400?utm_source=webapp" opinion_id="95400">180 U. S. 132, 21 S. Ct. 326, 45 L. Ed. 460; Western Assurance Co. v. Redding (C. C. A.) 68 F. 708" court="5th Cir." date_filed="1895-06-20" href="https://app.midpage.ai/document/western-assur-co-v-redding-8852873?utm_source=webapp" opinion_id="8852873">68 F. 708.
“The provision does not necessarily require the records to be kept in the form of books of account, nor indeed in book form at all.” Home Ins. Co. v. Flewellen (Tex. Civ. App.) 221 S.W. 630" court="Tex. App." date_filed="1920-03-03" href="https://app.midpage.ai/document/home-ins-co-v-flewellen-3951944?utm_source=webapp" opinion_id="3951944">221 S. W. 630; Continental Ins. Co. v. Rosenberg, 7 Pennewill (Del.) 174, 74 A. 1073" court="Del." date_filed="1909-01-20" href="https://app.midpage.ai/document/continental-insurance-v-rosenberg-6555832?utm_source=webapp" opinion_id="6555832">74 A. 1073; 26 C. J. 254.
The invoices examined by themselves and in the light of the testimony explanatory of them we think satisfy the general requirements of the rule as to the character which such records should have, and the jury’s verdict settles that they were complete. Though, then, we do think that the method employed by the plaintiffs in keeping their accounts was because of the informal and impermanent nature of the, records, undesirable in appearance and in character, and ,not at all to be commended, we are constrained, in view of the jury’s verdict, which wo think tho trial court correctly took, to hold that plaintiffs’ proof presented a substantial compliance with the provision of tho policy, and that the judgment should be affirmed.