Mr. Newell and told him that he had his house rented and that Mr. Newell said that was a good rental, that was all right. Fox said that was the answer Newell gave him, that it was satisfactory, and he had no objections. He stated that he thought he had previously told Mr. Newell that he was going to rent the house and that Mr. Newell had no objections. The record shows that Mr. Newell had authority to issue policies and that he had issued this policy.

The rule concerning forfeitures in insurance policies was considered by this court in the case of German Ins. Co. v. Gibson, 53 Ark. 494, 14 S. W. 672, and is as follows: "Forfeitures are not favored in law; and

-forfeitureestoppel.

any agreement, declaration or course of action on the part of an insuranc company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by conformity on his part, will estop the [insurance] company from insisting upon the forfeiture.' The rule thus announced has been steadily adhered to by this court." Interstate Business Men's Acci. Asso. v. Greene, 132 Ark. 546, 201 S. W. 799.

The above case cities many authorities on the question of forfeiture and cases upholding the rule above announced. But we do not deem it necessary to cite them here or to call attention to any additional cases. We have concluded that, when the insured notified the insurance company's general agent and the agent made the statement that Fox testified he did make, the

-occupancyforfeiture.

insurance company could not thereafter declare a forfeiture or defeat recovery because of the occupancy of the house by the tenant. It will be remembered that the agent does not deny that Mr. Fox told him what Fox testifies that he did, and does not deny that he made the statement which Fox says he made. It may be that the insurance company preferred to have a tenant rather

than to have the premises unoccupied. pied. The policy provides for the house to remain unoccupied for a longer period than Fox intended to be away, and the insurance company may have preferred to have a tenant rather than to have it unoccupied. It may have thought that burglary was more likely to occur if the house was unoccupied than if it were occupied by a tenant. At any rate, the plaintiff swears that he notified the agent and the agent does not dispute it and the insurance company could not declare a forfeiture under such circumstances.

proof of loss

sufficiency.

It is next contended by the appellant that no proof of loss, as required by the policy, was ever filed with the company, and specifically states that the proof of loss shall state a complete inventory of the stolen property. This, we think, the insured did. At any rate, no objection was made to the proof of loss because of the failure to make a complete inventory, nor was there any objection because the original cost of each article was not stated and the cash value at the time of the loss. These facts, together with the other objections to the proof of loss, were gone into in the trial when Fox was on the stand and he testified fully with reference to them.

Appellant's argument is that all the proof shown was the arbitrary valuation. But any valuation put upon them at all as to their cash value would, of course, have been an arbitrary valuation. arbitrary valuation. We find nothing in the record that would justify or excuse the appellant from paying the loss because of any defect in the proof of loss. It seems to have gotten all the information that it desired or that it asked for, and we think this was all it had a right to demand.

Appellant's next contention is that there is no testimony to show that the alleged loss was occasioned by burglary, theft, or larceny. And it is argued that the burden is upon the plaintiff to make this proof. We

think the insurance company's contention that the burden is on the

Evidence-burglary insurance -burden of proof as to loss.

plaintiff is correct,

but we do not agree with it in its contention that this burden was not discharged. The testimony shows that when Fox returned from California that Von Wetzner, the tenant, was gone, and that he never saw him after that time; that he notified the police of the loss of the articles stolen and found that the tenant had stolen some of them and returned them.

Willie McAdoo, colored, testified that while Fox was away that she went there every other day, and that when she went to the house on Wednesday, she found that all the doors were unlocked, the windows unlocked, and the inside doors open. The last time witness saw any of the tenants about the house was on Saturday, and on Wednesday the doors and windows were all unlocked. Witness did not know when they left. Did not know how long the place had been unoccupied and the doors unlocked, but that the last time witness noticed anybody there was on Saturday, and on the following Wednesday the doors and windows were unlocked and the inside doors open.

When Fox returned he found that certain articles were gone. About the only proof that could be made as to burglary or larceny, ordinarily,

would be that the doors or windows were open and that articles that were in the house before were missing and could not be found. This was sufficient proof that they had been stolen, and we think that the proof that the tenant stole some of them does not warrant the conclusion that he stole the others. And, while the burden was on the plaintiff to show the larceny of the articles, he was not required to show who stole them and was not required to show that the tenant did not steal them. When the plaintiff shows by evidence that the house was open and that the goods that were in there prior to the time Fox left were missing, we think this is sufficient evidence to justify the court in finding that the articles were stolen.

justify finding of theft-bur

-sufficiency to

glary insurance.

There was sufficient proof to justify the finding of the court, and the judgment is affirmed.

NOTE.

Burglary, larceny, theft, or robbery within policy of insurance is the subject of annotation following KOMROFF v. MARYLAND CASUALTY Co. post, 467, and the earlier annotations there referred to. Specifically as to sufficiency of circumstantial evidence, see subdivision II. of those annotations.

the safe, safes, or vault through the use of any key or by the manipulation of any lock."

Such of the circumstances attending the loss by the plaintiff, set forth in the agreed statement of facts, as are material to the present inquiry may be briefly stated as follows: The plaintiff was engaged in the jewelry business and as a pawn

The contract of insurance consisted of (1) a so-called "general policy," containing agreements and conditions appropriate and applicable to losses, whether by burglary, theft, or larceny, and (2) a "rider," entitled "standard safe burglary rider," specifically describing the loss insured against and setting forth a further "special agreement,' having reference and appropriate to insurance against safe burglaries. It was admitted in the argument that the general policy is used for all burglary risks, but that there are several forms of rider specifying and limiting the losses covered and the manner of their incurrence, the premium rate charged being proportionate to the extent of the coverage provided for.

The indemnity specified by the contract in question was "for all direct loss by burglary of money, negotiable securities, and merchandise described in the schedule and herein stated to be insured hereunder, in consequence of the felonious abstraction of the same during the day or night from the safe, safes, or vault described in the schedule, . by any person or persons who shall have made forcible and violent entry into the said safe, safes, or vault by the use of tools, explosives, chemicals, electricity, oxyacetylene gases or other similar gases, directly upon the exterior thereof, of which force and violence there shall be conclusive, visible marks."

The "special agreement" contained a provision (among many) that the insurer shall not be liable for any loss, "effected by opening

54 A.L.R.-30.

Haven. On February 4, 1925, at about 8 o'clock A. M., one Silver, employed by the plaintiff as a clerk, opened plaintiff's place of business and, upon unlocking an iron door leading from the center of the store to the rear portion, was confronted by a man (later identified as Michael Ricitelli), who pointed two pistols at Silver, hit him on the head with the butt of one of them, commanded silence, and bound and gagged him. Ricitelli took the keys from Silver's pocket and locked the front door; then, loosening somewhat the rope that bound Silver's hands and pointing a pistol at him, directed him, under threat of death, to open the safes..

Silver, upon these orders, started to turn the combination lock on one safe, but "took his time, hoping that someone would interfere." Ricitelli observed that Silver's hands shook, and said to him: "I see you are nervous and cannot open it. Give me the combination, but, if you don't give me the right one, you will be a dead one in a minute."

Silver thereupon gave the combination to the burglar, who opened the doors of both safes by the use of the combination. Ricitelli then tied Silver to a drain pipe in the rear room, covered him with a fur coat. and, going back to the safes, took therefrom a large amount of jewelry and other merchandise and made his escape. The fair value of the goods so taken was $21,314.75; of these, articles of the value of $10,641 were later recovered by the police and returned to the plaintiff.

The burglar was heard by Silver to use a hammer or other instru

ment on the safes before he obtained

the combination. Upon examination of the safes, marks were discovered around the locks, also finger marks, made by Ricitelli, were visible on the locks and doors of the safes.

The ultimate and decisive question presented by the reservation is whether or not the policy covers the loss sustained by the plaintiff, under the circumstances above stated. The policy is, obviously, not intended to provide indemnity against any or all loss by theft or burglary from the safes, but only such loss as results from the employment of means specified therein. A more complete or general indemnity could have been obtained through a different rider, carrying more comprehensive provisions as to the manner of loss, but involving payment of an increased premium commensurate with the greater risk.

Insurance

recovery.

.

In order to recover upon a policy of insurance, it is essential that the insured bring himconditions to self within its express provisions. If there are provisions of doubtful meaning, that construction which is most favorable to the insured should be adopted. Dresser v. Hartford L. Ins. Co. 80 Conn. 681, 70 Atl. 39; Moskovitz v. Travelers Indemnity Co. 144 Minn. 98, 174 N. W. 616. But if the terms are plain and unambiguous, they

-construction favorable to insured.

-policy given natural meaning.

must be accorded their natural and ordinary meaning; the court cannot indulge in forced construction, nor so distort provisions as to give them a meaning evidently not intended by the parties to the contract and which would cast upon the insurer a liability which it has not assumed. Nat. Bank v. Maryland Casualty Co. 162 Cal. 61, 121 Pac. 321, Ann. Cas. 1913C, 1170; Frankel v. Massachusetts Bonding & Ins. Co. - Mo. App., 177 S. W. 775; Blank v. National Surety Co. 181 Iowa, 648, L.R.A.1918B, 562, 165 N. W. 46;

First

Rosenthal v. American Bonding Co. 207 N. Y. 162, 168, 46 L.R.A. (N.S.) 561, 100 N. E. 716.

The language of the policy under consideration carefully limits the liability of the insurer to losses sustained through forcible or violent entry into the safes by the use of tools, explosives, chemicals, electricity, or certain gases directly upon the exterior of the safe. It requires that the force and violence employed shall be such as to leave conclusive, visible marks thereof upon the safe. It impliedly and, in the clause of the special agreement which is quoted above, expressly excludes burglary or theft by any one who knew the combination and entered by the use of it, alone, whether he be some one connected with the business of the insured and legitimately in possession of the knowledge, or a stranger who acquired it surreptitiously or otherwise. Comparison burglary

combination.

of the language of entry of safe by this provision with those which have been involved in earlier and somewhat similar cases suggests that it is the result of a gradual evolution calculated to eliminate claims of doubtful construction which have been made in the past, and with an intent to render it unambiguous. T. J. Bruner Co. v. Fidelity & C. Co. 101 Neb. 825, 166 N. W. 242; Moskovitz v. Travelers Indemnity Co. supra; Columbia Casualty Co. v. L. W. Rogers Co. 29 Ga. App. 248, 114 S. E. 718. The result is that opportunity for reasonable doubt or claimed ambiguity appears to have been rather thoroughly eliminated.

The plaintiff claims, however, that the circumstances of this case constitute a forcible and violent entry into the safes "by the use of tools;" contending that Silver, though innocent and unwilling, and the pistol used to intimidate him, were "tools" in a sense admissible under the language of the policy. While it is true that, in one sense,