Opinion
December 30, 1910.
Frederic Cyrus Leubuscher, for the appellants.
Joseph L. Prager, for the respondent.
The action was brought to recover for a loss occasioned by a burglary of the plaintiffs' premises upon which the defendant had issued its policy. There was no question but that a burglary had been committed. No question was made as to the loss of the watches, fountain pens and revolvers; nor as to their actual value, which was $120.37.
In addition the plaintiffs proved a loss of cutlery amounting to $834.87. They arrived at this amount by taking their last inventory, which had been made about six months before the burglary, to it adding all the purchases and from the result subtracting all the sales; the result ought to have shown what was in stock on the day of the burglary. The difference between this result and the actual inventory of the goods remaining in the store after the burglary showed what had been taken. In calculating the value, the estimated profit was subtracted and the result appeared in the figure above given.
Of course this was arriving at a result by calculation, but it would be difficult to suggest any other way of proving what had actually been stolen; unless it should be held that direct evidence must be given — in other words, that a teller or checker in behalf of the plaintiffs should have sat at the door and watched the burglars make off with the property and checked off each piece as it passed out.
The defendant admits the burglary; its officers were notified promptly and made an inspection within an hour or two after the notification, and its bookkeeper was in the establishment for over ten days going over the books, vouchers and records. A detective employed by it said that the manager for the plaintiffs, upon the day of the discovery of the burglary, had given the result of what had been stolen at $600.49. This, if believed, was a mere opinion, because it is conceded that at that time the accounts had not been checked, the inventory examined and the list made up.
We find no support whatever for the amount found by the jury in view of the fact that they resolved all the other questions in the case in favor of the plaintiffs. There was no evidence to impeach the loss of some cutlery, and as the other goods, about which no question whatever was made, were of the value of upwards of $120, the verdict as rendered of $100 cannot be justified upon any ground.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellants to abide event.
INGRAHAM, P.J., SCOTT, MILLER and DOWLING, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.