Opinion
No. 83-530.
Filed January 4, 1985.
1. Directed Verdict. In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence but whether there is any evidence upon which a jury can properly proceed to find a verdict for the parties producing it, upon whom the burden of proof is imposed. 2. Trial: Evidence: Proof. Where several inferences are deducible from the facts presented, which inferences are opposed to each other but equally consistent with the facts proved, the plaintiffs do not sustain their position by a reliance alone on the inferences which would entitle them to recover.
Appeal from the District Court for Banner County: JOHN D. KNAPP, Judge. Reversed and remanded with directions to dismiss.
Robert G. Pahlke of Van Steenberg, Brower, Chaloupka, Mullin Holyoke, for appellant.
John F. Simmons of Wright, Simmons Selzer, for appellees.
BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
This is an action brought by plaintiffs-appellees, DeRoy Anderson and Gerald Anderson, father and son, who farm lands as a partnership in Banner County, Nebraska. Plaintiffs are collectively referred to as Andersons or individually by the first name of each. The Andersons brought the action to recover under the theft provision of their farmowners' insurance policy issued by defendant, Farm Bureau Insurance Company of Nebraska (hereinafter Farm Bureau). The theft provision of the policy under which the Andersons sought recovery provides coverage for "direct loss by theft (but excluding escape, mysterious disappearance, inventory shortages, wrongful conversion and embezzlement)."
At the trial the Andersons generally presented evidence showing they did not have as much wheat to take out of two of their storage facilities as they had put into those two facilities. The described storage facilities were a round bin and a Quonset hut, located near Highway 71, or, as shown by Gerald's testimony, "on the place on the highway that Dad [DeRoy] owns . . . ." Farm Bureau made a motion for a directed verdict in its favor, both at the conclusion of the Andersons' case and at the conclusion of all the evidence. These motions were overruled, and the case was submitted to the jury, which returned a verdict for the Andersons, awarding $8,690.76 in damages. Farm Bureau filed a motion to compel a remittitur and a motion for new trial. The district court ordered the motion for new trial be granted unless the Andersons consented to a reduction of the judgment to reflect the amount of coverage the Andersons had paid for under the coinsurance clause of the policy. The Andersons consented, and judgment was entered in their favor in the reduced amount of $5,080.83. Farm Bureau appeals from the overruling of its motions for a directed verdict, and the Andersons cross-appeal from the order reducing their damages. Although a remittitur has been ordered and the jury verdict consequently reduced, Farm Bureau, the party for whose benefit the remittitur was ordered, may appeal from the reduced judgment, and the Andersons may cross-appeal. Neb. Rev. Stat. § 25-1929 and 25-1936 (Reissue 1979).
In its appeal Farm Bureau assigns four errors, including the assignment that the trial court erred in overruling Farm Bureau's motion for a directed verdict made after both Andersons and Farm Bureau had rested. We determine that this assignment of error is correct, and find that Farm Bureau's motion for a directed verdict should have been sustained and the case dismissed. This disposition of the case makes it unnecessary to consider Farm Bureau's other assignments of error, and also disposes of the Andersons' cross-appeal. For the reasons hereinafter stated the judgment of the trial court is reversed, the cause is remanded with directions to dismiss the Andersons' petition, and the Andersons' cross-appeal is dismissed.
The evidence presented showed that Gerald and DeRoy Anderson are experienced farmers who, among other crops, produce wheat. They store some of their harvested wheat in a bin and a Quonset hut near Highway 71. In 1979 these storage facilities were 10 miles from the home of DeRoy and 6 miles from the separate residence of Gerald. In the summer of 1977 the Andersons filled the Quonset hut with part of their harvested wheat crop. In March 1978 they cleaned out what was left of the 1977 crop in the bin near Highway 71 and also took 581 bushels from the Quonset hut. The Andersons testified that in 1978 they put 8,240 bushels of wheat in the round bin near Highway 71.
The Andersons produced records and testimony to show a total of 20,834 bushels of wheat were in the Quonset hut and bin on January 1, 1979. The Andersons further testified that 2,058 bushels were sold to the Kimball County Grain Co-operative between April 26 and May 16, 1979, and that in November of 1978 they had entered into a contract with a Wyoming elevator company, called D.R.W. Inc., to sell 16,000 bushels of wheat to D.R.W. at a price of $2.68 per bushel. It was agreed between the Andersons and D.R.W. that a written contract for this sale and purchase of 16,000 bushels of wheat was executed, but at the time of trial the contract itself could not be produced because it had disappeared both from the Andersons' and the D.R.W. files. Between March 15 and May 30, 1979, the testimony showed that 15,490 bushels were picked up by D.R.W., pursuant to the contract. The Andersons claimed 3,286 bushels of wheat were stolen from the bin and/or Quonset hut, because in cleaning out the bin and Quonset hut only 17,548 were sold by the Andersons — 2,058 to the Kimball elevator and 15,490 to D.R.W. Inc. This total amount was 3,286 bushels short of the 20,834 bushels their records showed were stored there.
Under the terms of the contract between the Andersons and D.R.W. Inc., D.R.W. was to pick up and load the wheat at the bin and the Quonset hut near Highway 71. Because D.R.W. did not always show up when it informed the Andersons, and because it took over an hour to install and take down the horizontal powerhead attached to the bin, enabling the removal of grain, the powerhead was left on and the Quonset hut left unlocked so that D.R.W. would have easy access. The powerhead was installed sometime prior to March 15, 1979, when D.R.W. picked up the first load. The Quonset hut was unlocked on April 26, 1979; and from the time of the installation of the powerhead and the unlocking of the Quonset hut, the wheat was unsecured and easily accessible to anyone.
On May 7, 1979, D.R.W. informed the Andersons that there was not enough wheat remaining in the Quonset hut to fill the 16,000-bushel contract. It was on this day that the Andersons first discovered a shortage, and Beulah Anderson, wife of DeRoy, noted on her calendar, "Where's the wheat?" The Andersons testified that there was never unusual spillage of wheat near the named storage facilities, nor were there any strange or unusual tire tracks, nor was there any evidence of forced entry or exit.
On June 25, 1979, DeRoy contacted a Farm Bureau employee, Sandra Faden. On July 18, 1979, DeRoy visited with Sheriff Robert Stoddard about the wheat loss. On October 3, 1979, Lyle Bown, claims adjuster for Farm Bureau, met with DeRoy at the Quonset hut. Eventually, the Andersons were notified by Farm Bureau that their claim was denied.
The dispositive question presented is whether there was sufficient evidence to support the verdict. For this purpose we must consider the evidence in the light most favorable to the Andersons and give them the benefit of all inferences that reasonably can be drawn from the evidence. In Popken v. Farmers Mutual Home Ins. Co., 180 Neb. 250, 255, 142 N.W.2d 309, 313 (1966), we stated:
The plaintiffs may establish their case by circumstantial evidence as well as by direct evidence.
However, circumstantial evidence is not sufficient to sustain a verdict depending solely thereon for support, unless the circumstances proved by the evidence are of such nature and so related to each other that the conclusion reached by the jury is the only one that can fairly and reasonably be drawn therefrom. Mullikin v. Pedersen, 161 Neb. 22, 71 N.W.2d 485.
The evidence must be such as to make the plaintiffs' theory of causation reasonably probable, not merely possible.
In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any evidence upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Weston v. Gold Co., 167 Neb. 692, 94 N.W.2d 380.
Where several inferences are deducible from the facts presented, which inferences are opposed to each other, but equally consistent with the facts proved, the plaintiffs do not sustain their position by a reliance alone on the inferences which would entitle them to recover. Shamblen v. Great Lakes Pipe Line Co., 158 Neb. 752, 64 N.W.2d 728.
Conjecture, speculation, or choice of quantitative possibilities are not proof. There must be something more which would lead a reasoning mind to one conclusion rather than to the other.
See, also, Raff v. Farm Bureau Ins. Co., 181 Neb. 444, 149 N.W.2d 52 (1967).
The Andersons have failed to meet their burden of proof in this case; for while an inference of theft is possible, it is not the only conclusion which can reasonably be drawn, nor is it the prime contender in this insurance terms tournament: mysterious disappearance, embezzlement, and wrongful conversion are, at the very least, equally formidable.
If, as the Andersons contend, an inference of theft may be fairly and reasonably drawn from the evidence that they had stored 20,834 bushels in the Quonset hut and bin and sold only 17,548 bushels in 1979, equally justifiable inferences, consistent with the facts proved and inconsistent with the Andersons' right to recover, are that the wheat was stored in another bin, that an employee truckdriver for D.R.W. or D.R.W. itself took a load of wheat for himself or itself, or that D.R.W. or its drivers failed to keep track of all the wheat they hauled away.
The Andersons' harvest records are kept by Beulah Anderson in a ledger identified as exhibit 2 in the trial. The record shows the harvest according to field in each year and the storage facility to which the wheat was trucked. The Andersons contend 13,175 bushels of wheat were stored in the Quonset hut in 1977. Of these 13,175 bushels, 855 bushels were harvested off the "Blake" place and not recorded in exhibit 2. These 855 bushels were recorded as having been deposited in the Quonset hut by Gerald on a separate piece of notebook paper identified as exhibit 3 at the trial. When asked why no bushels were recorded under the "Blake" heading, Beulah answered that this grain was taken to storage facilities elsewhere. Likewise, 2,370 bushels from the 1978 harvest off the "school" section are recorded by Gerald as being stored in the east bin, but Beulah, noting the absence of any recording under the school section in her notebook, testified the wheat had been stored by Gerald elsewhere. Thus, Beulah's testimony would suggest 3,225 bushels of wheat had not been stored in the Quonset hut and bin, as the Andersons contend.
D.R.W. had free access to the bin from the time the powerhead was installed and to the Quonset hut from the time it was unlocked. Not only could one of its drivers have misappropriated the grain but the corporation itself may have inadvertently taken more than it paid for. None of these actions constitute "theft" under the terms of the insurance policy in question.
Even though DeRoy later denied it, he had indicated to both the insurance company and D.R.W. that he suspected the D.R.W. drivers; and the Andersons, although they felt the business practices of D.R.W. were less than efficient, did not themselves keep track of the number of loads and weights taken from the bin and Quonset hut storage facilities.
Ultimately, the evidence goes no further than to give support to at least three inconsistent inferences, and the judgment must go against the parties who have the burden of proof. In this connection, DeRoy summed up the situation in his answers on cross-examination, when he testified:
Q. [Farm Bureau's counsel] And as a matter of fact you cannot say the wheat was stolen?
A. It wasn't there.
Q. But you don't know that it was stolen, you testified to that, didn't you?
A. Our inventory come up short, that is all we know.
The judgment of the trial court is reversed, and the cause is remanded with directions to dismiss the Andersons' petition.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.
KRIVOSHA, C.J., participating on briefs.
WHITE, J., not participating.