State Farm Fire & Cas. Co. v. Rice

• Decision Date: 17 October 1966
• Docket Number: No. 5--3972,5--3972
• Citation: 406 S.W.2d 880,241 Ark. 201
• Court: Arkansas Supreme Court
• Parties: STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Forrest E. RICE et ux., Appellees.

Page 880

406 S.W.2d 880

241 Ark. 201

STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Forrest E. RICE et ux., Appellees.

No. 5--3972.

Supreme Court of Arkansas.

Oct. 17, 1966.

Brown, Compton & Prewett, El Dorado, for appellant.

W. P. (Billy) Switzer, Crossett, for appellees.

McFADDIN, Justice.

This is an action by an insured to recover for property alleged to have been lost by theft.

Appellees, husband and wife, were policy holders of a home owners' policy issued by appellant. Among other things the policy covered '* * * personal property * * * owned, worn, or used by an insured while on the premises * * *' One of the perils insured against was 'Theft, meaning any act of stealing or attempt thereat * * *' Appellees filed action claiming that Mrs. Rice's cloth coat of the value of $80.00 and been stolen from the Rice home, and that they were entitled to be compensated ¹ under the policy provisions above quoted.

The appellant insurance company denied any liability; the case was tried to the Court without a jury; and there was a finding and judgment in favor of the plaintiffs for $80.00 and interest, plus costs, penalty, and attorney's fee. From such judgment there is this appeal, and appellant urges only one point, to-wit:

'Under the facts and under the terms and conditions of the policy there is no substantial evidence to support the judgment.'

We have previously copied the germane provisions of the policy. The facts were disclosed by the testimony of Mrs. Rice. She testified that before going to the hospital for surgery she checked all her winter clothing and that the coat was in her bedroom closet. She remembered distinctly checking about the buttons. Some time after she returned from the hospital she discovered that the coat was missing from the closet. She made a thorough search of the premises and the coat was not to be found; and she notified the insurance agent of the loss. Mrs. Rice further testified that the only persons living in the home were her husband, herself, and their 13-year-old daughter; that they also had a maid for housework; that frequently the entire family had been away from the home; and that she could not say that the doors were always locked when the entire family was away.

The burden of proof was on the plaintiffs to prove that the coat was lost by theft. (National Surety Co. of New York v. Fox, 174 Ark. 827, 296 S.W. 718, 54 A.L.R. 458.) Appellant argues that the proof offered by the appellees was not sufficient to warrant a finding that the loss was due to theft; and appellant claims that a mere disappearance of an article does not, of itself, mean a theft. There are a myriad of cases involving claims on insurance policies for loss of property. Even to attempt to delineate the cases would be a work of supererogation. In addition to the National Surety case previously cited, some of our own cases involving loss of insured property in which the insurance policy covered larceny besides theft, are: Central Surety Fire Corp. v. Williams, 213 Ark. 600, 211 S.W.2d 891; Massachusetts Fire & Marine Ins. Co. v. Cagle, 214 Ark. 189, 214 S.W.2d 909; and Equity Mutual Ins. Co. v. Merrill, 215 Ark. 483, 221 S.W.2d 2.

There are interesting annotations in American Law Reports on 'Burglary, Larceny, Theft, or Robbery within Policy of Insurance.' These annotations may be found in 41 A.L.R. 846; 44 A.L.R. 471; and 54 A.L.R. 467. In the last cited annotation it is stated: 'While mere disappearance of an article covered by the policy is not sufficient, of itself, to warrant a finding that...