Stuart A. Culbertson, Meadville, for appellant.
Kenneth W. Rice, Meadville, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.
[ 171 Pa. Super. Page 599]
This action of assumpsit on a written contract of burglary and robbery insurance was brought to recover the value of articles stolen and for damage to the premises of plaintiff's service station. The jury returned a verdict for plaintiff, and after its motions for a new trial and judgment n. o. v. were discharged by the court below, the defendant took this appeal.
[ 171 Pa. Super. Page 600]
The parties entered into the contract in question in June 1944, at which time plaintiff was engaged in business as proprietor of a gasoline and oil service station in Cochranton, Crawford County. Because of war shortages of tires and other materials normally incident to the auto supply business, plaintiff also carried for sale a line of fishing tackles, guns and other sports equipment.
On the night of August 23, 1944, plaintiff and his wife, after checking to see that the windows were closed, locked up the service station and drove to their home. The next morning, upon his return to the station, plaintiff noticed that certain equipment was missing from its usual place and upon this discovery he called in Frank Murdock, the local constable, who was at that time in the vicinity and on his way to work. On the latter's advice, based on the theory that the then-scarce equipment might more readily be recovered and the thief apprehended if public knowledge of a burglary were withheld, plaintiff did not then call the state police, but did notify defendant's local representative Shaffer, through whom the contract of insurance had been consummated. On August 26 a representative of the defendant came to the station and, after talking with the plaintiff and one of his employes, filled out a proof of loss which the plaintiff executed. The verdict of the jury establishes the fact of the burglary and the amount of the plaintiff's loss.
A clause of the policy provided: 'B. * * * The Company shall not be liable for loss of or damage to any property unless books and accounts are kept by the Insured in such manner that the Company can accurately determine therefrom the amount of loss or damage. * * *' Another paragraph indemnified against burglary 'which shall mean the felonious abstraction of such property from within such premises, by any person
[ 171 Pa. Super. Page 601]
or persons making felonious entry therein by actual force and violence when the premises are not open for business, of which force and violence there shall be visible marks made upon the exterior of the premises at the place of such entry, by tools, explosives, electricity or chemicals.' The defendant denied liability and bases this appeal upon the contention that the plaintiff did not comply with either of these provisions in the policy.
Defendant bases its argument that the plaintiff did not comply with the provision of the policy relative to 'books and accounts' upon (1) a material variance between the itemized list of articles as contained in the proof of loss executed on August 26 and an itemized list attached to the statement of claim when suit was brought on May 3, 1945, and (2) ...