*1 corporation, appellant, Ward Cattle a Nebraska Company appellee. Nebraska, Farm Bureau Insurance N.W.2d

Filed June 1986. No. 85-330. Bryan Office, Bryan Daniel E. of Heinisch & Law for n appellant. Marti, Gary Dalton, Bruckner, J. Nedved of O’Gara & Keating, P.C., appellee. for Boslaugh, Hastings, C.J., Caporale, Grant, JJ.

Per Curiam.

Plaintiff-appellant, (Ward), brought Cattle Ward Co. this $7,200 provision action to under recover the theft of an policy insurance the defendant-appellee, issued Farm Company Bureau Insurance of Nebraska. After a trial without jury 19, 1984, County November Fillmore Court found that Ward’s loss of 12 heifers result of theft and exemptions policy recovery that the which foreclose mysterious escape, disappearance, inventory losses due to shortages, wrongful applicable. conversion were not $7,200 plus court awarded court costs $2,000. attorney fee of entry journal April dated appealed, and in a

Farm Bureau 30, 1985, County reversed the District Court the Fillmore decision, theft was insufficient as a holding that evidence of that, had failed consequently, matter law and *2 We appealed to this court. prima a facie case. Ward establish affirm. family engaged in the business of corporation a

Ward is president of the farming feeding. cattle Donald and son, wife, Shirley, secretary. The Wards’ corporation, and his Barbara, wife, John, he and live on president, is the vice and his 6, 1980, Ward corporate farmstead. On November the Hereford heifers. The cattle purchased 91 head crossbred holding placed pen the Ward farm and in a were delivered to designated pen 2. The adjacent pen in the record as No. holding pen, in the which was located heifers remained and Barbara Ward’s home. approximately 100 feet from John No. 2 an enclosed stubble cornfield pen To the east of holding pen containing 260 steers. To the northwest of the was a chute, gates pen loading the of which were unlocked. Both No. holding pen pen field No. 2 and the were and the stubble and separated wire mesh fences. 14, 1981, morning the

On the of November Wards that 16 of the heifers were from the discovered holding night pen. John Ward testified that on the of November 13, 1981, 11 p.m., between 10 and a disturbance had occurred holding pen: just “I heard and I some commotion looked out the window and I some dirt in the air and the cattle [saw] running up hill 2.” Ward the side in Pen No. testified that he ran gate open from the to close an that led to the stubble house field. following morning,

The Ward and father did a John his head heifers, count of the some of which were now mixed in with the steers, missing. and discovered that 16 were No steers were immediately missing. The Wards notified the local sheriff and agent, investigated their Farm Bureau and both the incident. at the entire Evidence adduced trial revealed that 80-acre intact, fenced. were farmstead was These fences all with no signs damage, cutting. uprooting, The authorities also droppings directly cattle found no tracks or outside roads, surrounding fence, county or in adjacent perimeter ditches. revealed, however, fences investigation

The damaged. posts were had been surrounding pen flattened. None broken, lengths fence were two of mesh The record posts uprooted. had been cut or the of the wires driveway approximately a crushed rock further indicates that loading chute. length from a road 500 feet in runs of the 30 feet north that the house is about John Ward testified using when vehicles are driveway generally he can hear incident saw driveway. investigating the parties None of the tracks, in the area of the any hoofprints, or cut fences tire with local sale barns The sheriff also verified chute. recently been sold or listed. similar to Ward’s had that no heifers Nebraska, Geneva, ad in the placed Donald Ward 20,1980, Co. stating that Ward Cattle newspaper on November any responses to He did not receive heifers. had “lost” 16 were the heifers later four of ad, 2 weeks approximately but Wards’ miles east of neighboring farm some at a located *3 way their the four heifers found farmstead. How record, they but were revealed in the neighboring farm is not eventually the Wards. returned to remaining 12 the filed a claim with Farm Bureau for claim, alleging that Bureau denied the heifers. Farm in coverage policy. the At trial within the

Ward’s loss was not lawsuit, no evidence subsequent the defendant offered the witnesses. through plaintiff’s of the except cross-examination rested, case, the Bureau and plaintiff’s At Farm the close of favor. The county plaintiff’s ruled in the subsequently court reversed, in under our decision that district court Co., 1, 360 N.W.2d Bureau Ins. 219 Neb. Anderson v. Farm prima facie a (1985), had failed to establish 488 of theft. case evidence dispositive question

The is whether sufficient judgment judgment. The support the court’s existed to jury verdict equivalent to a of a trial court as the finder of fact is Town clearly wrong. West will not be set aside unless and 905, Schneider, N.W.2d 215 Neb. 341 Homeowners Assn. 669, 38, Neb. 316 (1983); Studley v. Dist. No. 210 School (1982). reviewing N.W.2d 603 court considers the evidence light gives in party most favorable to and successful party the of all benefit reasonable inferences to be drawn from Co., 901, the evidence. White v. Medico Ins. 212 Neb. Life 606 (1982). N.W.2d agree plaintiff’s We with the district court that the evidence support prima failed to a case facie of theft which would entitle coverage it to policy. provision under the insurance The theft Ward’s insurance contract states: “1. Theft. This insurance is by excluding extended to include direct (but escape, loss theft mysterious disappearance, inventory shortages, wrongful conversion and embezzlement). Any (1) ... direct losses theft shall be construed to include losses clear where satisfactory evidence is regarding established the theft.” In Farm Bureau Ins. 149N.W.2d Raff v. (1967), explained we in meaning policy some detail the terms identical to these. We stated: popular usage,

In word “theft” is name another “larceny.” rule, general however, As a the term as used in policy necessarily insurance synonymous is not with larceny, may but have much broader and more inclusive meaning. It could cover pilferage, swindling, embezzlement, conversion, other unlawful appropriations Here, however, larceny. as well as it apparent term is used much in a more restricted usually than necessary sense the case. itWhile is not precise herein, arrive at a definition it is evident “theft” must be construed to mean escape, other than mysterious disappearance, inventory shortage, wrongful conversion, embezzlement, specific because these are policy. exclusions

“Escape” is Dictionary defined Black’s Law (4th Ed.), p. 639, flight custody. as a from In Webster’s New Dictionary (2d Ed.), Unabridged, International p. *4 * * “escape” get the word away *; is defined as: “To to ** get free, get away, break or clear As used in this livestock, policy pertaining to “escape” must be construed straying leaving to mean or place from confinement.

“Mysterious disappearance,” under the of a theft terms policy, disappearance has been defined as under unknown, puzzling, baffling circumstances which wonder, curiosity, speculation, arouse under or explain. which circumstances are difficult or hard to 447, (Emphasis supplied.) (Citation omitted.) 181 Neb. at N.W.2d at 55. Co.,

In Anderson v. Farm supra, Popken Bureau Ins. and in Co., 250, v. Farmers Mutual Home Ins. 180 Neb. 142 N.W.2d (1966), may by plaintiff we held that a establish its case However, direct or circumstantial evidence. circumstantial evidence alone is insufficient to sustain a verdict unless proved by circumstances the evidence are “of such nature and so related to each other that the conclusion reached ...

only fairly reasonably one can drawn....” Wewent be say make “the that the evidence must be such as to plaintiffs’ theory reasonably merely probable, of causation not possible.... Conjecture, speculation, quantitative or choice of possibilities proof. not There must be more [is] reasoning which would lead a mind to one conclusion rather 255, than to the other.” 180Neb. at 142N.W.2d at 313.

Where several inferences are deducible from the facts presented, which opposed inferences are to each other but equally proved, plaintiff consistent with the facts does not position by sustain its a reliance alone on the inferences which Co., would entitle it to recover. Anderson v. Farm Bureau Ins. 219 Neb. (1985); 360 N.W.2d 488 v. Great Lakes Shamblen Pipe Line (1954). 64 N.W.2d 728 Using standards, these we conclude that the has proof Although failed to meet its burden this case. inference of possible, theft is it is not the conclusion that reasonably example, could be drawn from the evidence. For no explain one could physically how the heifers were removed holding from the pen. John Ward that he could testified generally using driveway. hear vehicles rock He also crushed testified that in order to use the chute pen, necessary large it would be to use a semi or a farm truck height because of the of the chute. He admitted that either vehicle “pretty would make a fair amount of noise.”

Additionally, there no evidence of tire unusual tracks or droppings cattle around the chute. mysterious

Even more is how four of the heifers reappeared neighboring only at a farm. The Wards testified they did not know how the cattle came to be at their neighbor’s neighbor’s farm 2 after weeks the incident. farm farm, is located east of the Ward the direction John Ward running testified he night saw the heifers on the of November question why, 13. Another unanswered if the heifers were stolen, flattened, pen were the fences not cut or if, uprooted, testified, as as Donald Ward had run cattle through them? any

Neither the Wards nor their witnesses could offer physical establishing evidence how the cattle were stolen. At best, goes the evidence no supporting further than a number of inconsistent inferences as to how the animals vanished.

Affirmed. White, J., participating on briefs. J., concurring C. in the result. specifically

For my reasons more set out in separate concurrences in Anderson v. Farm Bureau Ins. 360 N.W.2d 488 (1985), Price, and In re Estate p. ante

388 N.W.2d 72 (1986), I concur in the result reached in this case. This is an example of a case where we have combined two are, view, my rules which majority inconsistent. The first says that “circumstantial evidence alone is insufficient to sustain a verdict unless the proved circumstances are evidence ‘of such nature and so related to each other conclusion only fairly reached ... is the one that can reasonably be drawn ....’” (Emphasis supplied.) Having said that, majority says: then evidence must be such as to “[T]he plaintiffs’ theory ‘the reasonably make probable, causation merely possible. not . . . something There must be more which reasoning would lead a mind to one conclusion rather than ” to, (Emphasis supplied.) the other.’ It is inconsistent on the hand, one hold that the evidence must be such that one and, time, conclusion can be reached at the same on the other hand, something hold that there “must be more which would reasoning lead a mind to one conclusion rather than to the be “only” which can other.” conclusion If reached, possibilities. two can never be better of it J., joins in this concurrence. Indemnity corporation, appellee, Company,

Travelers Heim, wife, Arthur Heim and Melva husband and *6 High Agricultural appellants, Credit Plains appellee. Corporation, 388 N.W.2d June No. Filed 1986. 85-398. Simmons, Jr., Wright, Selzer, for

Robert G. Simmons & appellants. Venteicher, Lang, Laughlin Laughlin, Peterson &

Mark L. High appellee for Plains. Holtorf, Kovarik, Nuttleman,

David C. Nuttleman Javoronok, P.C., Ellison, appellee Travelers Mathis & Indemnity. C.J., Boslaugh, White, Hastings, Caporale, Grant, JJ.