On appeal from the Fifth Judicial District Court of the county of Union.
For the plaintiff-respondent, Sam Weiss.
For the defendant-appellant, Mahlon M. Meier.
Before Justices Lloyd, Case and Donges.
The opinion of the court was delivered by
CASE, J. Plaintiff sued upon a policy issued by the defendant company insuring the plaintiff against loss by robbery in the grocery and meat market conducted by the assured at
11 Johnson avenue, Cranford. The court, sitting without a jury, gave judgment to the plaintiff in the amount of $225. Defendant appeals and presents three specifications of error.
The first specification is that the court denied appellant's motion for a nonsuit based on the following grounds: (a) That plaintiff-respondent had failed in making prima facie proof of any loss occasioned by burglary within the terms of the policy issued by appellant to plaintiff-respondent and (b) that plaintiff-respondent had admitted that no books or accounts were kept by plaintiff as required by the terms of said policy as a condition precedent to appellant's liability thereon. The first subdivision is made to rest upon the policy provision that the abstraction of property must be consequent upon entry "by actual force and violence * * * 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." We find that there was evidence to take that question to the jury. It is not material that the evidence came in on defense. A ruling denying a motion for nonsuit, erroneous at the time it is made, may be cured by subsequent proofs. McGee v. Kraft, 110 N.J.L. 532.
The second subdivision of the first point depends upon the following policy provision: "The company shall not be liable for loss of or damage to any property unless books and accounts are kept by the assured in such manner that the company can accurately determine therefrom the amount of loss or damage." Whether such policy provisions constitute conditions precedent or conditions subsequent (Center Garage Co. v. Columbia Insurance Co., 96 N.J.L. 456) or are not conditions at all, as that expression is technically used, is not material. The quoted sentence is an effective part of the insurance contract. It was construed (although its application was denied) in Michler v. New Amsterdam Casualty Co., Inc., 104 Id. 30; affirmed, Ibid. 663, as follows:
"* * * such a provision * * * leads us to the view that the plain meaning of the provision is that when it becomes necessary to accurately determine a loss by robbery
and it appears that the keeping of books and accounts is material and necessary in order to attain that end, then in such a case the failure to have complied with provision (d) operates to ...