The opinion of the court was delivered by: MILLER
Plaintiff filed his complaint in the Circuit Court of Benton County, Arkansas, alleging that he took out a fire insurance policy with the defendant in the amount of $ 2,000 covering a dwelling on certain real estate located in Rogers, Arkansas, and in the amount of $ 500 covering the household and personal property in said dwelling; that all premiums due on the said policy up to and including September 23, 1951, were paid; that on the night of September 23, 1951, the dwelling and personal property therein were destroyed by fire, the loss to the dwelling being total, and the loss to the personal property exceeding $ 500; that due notice and claim has been made to defendant but defendant has failed and refused to pay said claim; and praying that plaintiff have judgment in the sum of $ 2,500, plus 12% penalty, 6% interest and attorney's fee.
The case was tried to the court without a jury on January 30, 1952, by agreement of the parties, and at the conclusion of the presentation of the evidence the court took the case under advisement. The court has now fully considered the pleadings, the ore tenus testimony of the witnesses and exhibits thereto, the authorities cited by the respective parties and those found by the court as the result of an independent research, and makes and files herein the following findings of fact and conclusions of law, separately stated.
The plaintiff, L. C. Conley, is a citizen and resident of Benton County, Arkansas, within the Western District of Arkansas. The defendant is a stock fire insurance company organized under the laws of the State of New York and authorized to do business in the State of Arkansas. The amount involved herein exceeds the sum of $ 3,000, exclusive of interest and costs.
On April 21, 1951, the defendant through the Vogt Agency at Rogers, Arkansas, issued and delivered its policy of fire insurance No. S 174 to the plaintiff for a term of five years in consideration of the payment of a premium of $ 89.42 payable in installments. An installment of $ 21.70 was paid upon the issuance and delivery of the policy and there were no payments due on the premium on the date of the fire.
The policy recites that the defendant 'does insure L. C. Conley and his legal representatives to the extent of the actual cash value of the property at the time of the loss, but not exceeding the amount which it would cost to repair and replace the property with material of like kind and quality within a reasonable time after such loss, * * * nor in any event for more than the interest of the insured, against all direct loss by fire * * * .' The amount of the insurance was $ 2,000 'on the approved roof frame dwelling occupied by owner', and $ 500 on household and personal property usual or incidental to the occupancy of the premises as a dwelling.
While the policy was in force on September 23, 1951, a fire occurred in the building which so burned the household goods as to render them worthless, although some of the household goods were not totally consumed.
The plaintiff testified that the value of the household goods and personal property in the house at the time of the fire was between $ 1,700 and $ 1,800. However, the list that he filed with the Vogt Agency totaled $ 1,443.75.
The building was a frame structure and was situated on a plot of land 124 feet wide East and West and 200 feet long North and South, being a part of Block 11 in McGaughey's Orchard Addition to the City of Rogers, Arkansas.
The title to the property was obtained by deed dated April 8, 1938, and executed by the Benton County Nursery Company, Inc., which deed conveyed the property to the plaintiff 'Lon C. Conley and wife Goldie and unto his and her heirs and assigns forever'.
The fire was discovered on the evening of September 23, 1951, at about 10 o'clock, and when the fire fighting equipment of the Rogers Fire Department arrived at the building the entire South end of the original building was burning fiercely and the roof of the entire building was flaming with the exception of the roof over the Northwest downstairs room. Photographs were introduced showing the extent to which the building was burned before the fire was extinguished, and these photographs disclosed that the North wall and the East wall were left standing, as well as the West wall of the addition, but all of the inside with the exception of the floors in two or three rooms was badly burned and charred. Both parties introduced testimony on the question as to whether the building was a total loss, and from that testimony and an examination of the various photographs introduced by the respective parties, the building appears to be in such a condition that the part remaining would of necessity have to be torn down before being utilized. The testimony does not disclose that the portions of the building left standing could be reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the fire, and a reasonable prudent uninsured owner desiring to restore the building to its original condition would not utilize the standing portions of the building before tearing them down. In other words, the portions of the building left standing were so damaged that they could not be utilized to an advantage in restoring the building.
The former wife of the plaintiff obtained an absolute divorce from the plaintiff in the Benton Chancery Court on April 20, 1951. The decree made no division or partition of the property but recites 'that the parties hereto are joint owners by the entirety of property in Rogers, Arkansas'. The property referred to is the land and house involved herein. See, also, deed introduced as plaintiff's Exhibit I.
The lowest estimate of the cost of rebuilding the house and restoring it to its condition prior to the fire was $ 3,500. The defendant introduced testimony of one witness, C. R. Bradway, who testified that he was a contractor and that the building could be repaired, but that witness refused to state what would be the cost of repairing the building. Mr. J. T. Harmon, a contractor, stated that he would undertake to rebuild the building for the sum of $ 5,000 to $ 6,000.
The plaintiff was not at home the night of the fire. He was visiting a sister in Madison County, Arkansas, and did not return to Rogers, Arkansas, until the next day, Monday September 24, 1951, when he learned that the fire had occurred and that the officers of the law were looking for him. He went immediately to the police station and was there interrogated about the origin of the fire and was arrested upon a charge of arson committed by burning the building, but that charge was later dismissed upon a preliminary hearing before a Justice of the Peace.
For some months the plaintiff had not been living regularly in the house, but occasionally did spend the night there. He was under the impression that he had to spend at least one night every 60 days in order to keep the insurance in force.
The testimony of the Chief of the Fire Department of Rogers, Arkansas, and another fireman disclosed that someone had placed in most if not all of the rooms various containers such as buckets, pans and a small tub, which utensils contained a petroleum product. A bucket was setting in the Northwest downstairs bedroom to which a string was attached that led to a small wash tub that was found setting on a shelf in the bathroom, and it was the theory of the defendant that the plaintiff either burned or caused the building to be burned. The testimony further showed that the front door was locked from the inside and the back door was padlocked, while a door on the East side had nothing more than an ordinary lock. The plaintiff admitted that he went by the property on Sunday morning, September 23, but did not enter the house and only went by for the purpose of ascertaining whether he had any mail and did find some mail in the mailbox, which he obtained, and after obtaining the mail he left the premises and went by bus to his sister's home in Madison ...