Insurance Co. of North America v. Schultz

441 N.W.2d 686, 1989 S.D. LEXIS 96, 1989 WL 63529
CourtSouth Dakota Supreme Court
DecidedJune 14, 1989
DocketNo. 16433
StatusPublished

This text of 441 N.W.2d 686 (Insurance Co. of North America v. Schultz) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Insurance Co. of North America v. Schultz, 441 N.W.2d 686, 1989 S.D. LEXIS 96, 1989 WL 63529 (S.D. 1989).

Opinion

SABERS, Justice.

Sandy and Allan Schultz (Insureds) appeal an adverse judgment on a claimed loss of 917 hogs under the theft clause of a commercial farm policy with Insurance Company of North America (INA).

Facts

Insureds were brothers who began raising hogs together in 1974. They developed a hog confinement system to raise the hogs. The hogs were farrowed on Sandy’s farm. Shortly after weaning, the hogs were moved a mile and one-half to Allan’s farm. They were counted and placed in a grower building. The grower building contained pens which gradually increased in size from one end of the building to the other. The hogs were placed in the small pens and moved to the far end of the building as they grew. Upon reaching 100 to 150 pounds, the hogs were moved to a finishing building also located on Allan’s farm. They remained in the finishing building until they reached market weight of 220 pounds. Insureds would jointly decide when a load was ready for market. The hogs were taken to market in Sandy’s truck, which held approximately 30 hogs. Insureds would receive separate checks in equal amounts from the sale of each load of hogs.

Insureds kept fairly detailed records of their hog operation. These records included the number of hogs weaned, death loss, and number of hogs sold per year. Insureds also maintained annual feed records. At the end of each year, Insureds took an inventory of all hogs.

At the end of 1984, Sandy’s wife, who did the' books for the operation, concluded that the operation was substantially short on income from hogs sold during the year. She had mentioned to Sandy on more than one occasion during the year that she believed they were short on hogs. However, Sandy did not pursue his wife’s concerns. Insureds conducted a year-end inventory for 1984 and determined a number of hogs were missing. Sandy contacted the local INA agent and reported that as many as 1,000 hogs were missing. He did not object to the agent’s report of a 500 head loss. Allan contacted Kingsbury County Deputy Sheriff James Lentsch (Lentsch) and reported a loss of approximately 400 to 500 hogs. Lentsch came to Allan’s farm after the report to interview Insureds and inspect the premises.

During a second interview with Lentsch and Jerry Lindberg (Lindberg), a DCI agent, Insureds reported a loss of 1,024 weaning hogs in the range of 40 to 60 pounds. It was also reported to the officers at this time that Allan’s dog disap[688]*688peared in May of 1984. Insureds eventually claimed that 917 market weight hogs were stolen from Allan’s farm. This was the loss claimed at trial. This figure was based on a comparison of the 1983 and 1984 records. These records showed that Insureds weaned 1,689 hogs in 1983 and 1,775 hogs in 1984. Insureds made 48 trips to sell hogs in 1983 and sold 1,483. Insureds made 28 trips to sell hogs in 1984 and sold 840. The records showed that the death rate and feed consumption for both years was approximately the same.1

No evidence of theft was found on Allan’s farm. However, the doors and windows in the confinement buildings on Allan’s farm were not locked. Despite the number of hogs allegedly stolen, Insureds did not report any unusual occurrences on Allan’s farm during this time. In addition, neither noticed a dwindling number of hogs, nor that they were selling fewer hogs or bringing in less income. Sandy testified at trial that they believed the hogs were stolen over a period from April through December of 1984. He testified that as many as ten or more thefts may have occurred over this time period. He conceded that it would have taken several double-deck trailer loads to accomplish these thefts.

Allan lived with his wife and three school age children on the farm. They did not see any strange vehicles on their farm. The only regularly established time that Allan and all his family were absent from the farm was to attend church on Sundays between 9:00 a.m. and 12:00 p.m. No one in the area reported seeing any strange trucks or vehicles on Allan’s farm. Law enforcement officers checked area sale barns and found no evidence of the sale of the missing hogs. The only other reported theft of hogs in the area during this time was an alleged theft of six pigs, their litters, and a boar from a farm approximately ten miles from Allan’s. The law enforcement officers testified that they had never investigated a loss of the magnitude claimed by Insureds.

Sometime after the investigation began, Sandy accused the officers of complicity and incompetency in investigating the theft. These accusations were made after Lindberg told Sandy that he believed Allan was involved in the thefts. Sandy demanded that the investigation cease and told Lindberg that he would not cooperate with them even if they discovered who took the hogs.

INA filed a declaratory judgment action against Insureds to determine coverage under the policy. Insureds answered and counterclaimed against INA. The counterclaim alleged that the theft of 917 hogs, valued at approximately $64,000, was covered under the policy with INA.2 A court trial was held on July 13, 1988. The trial court denied the claim, finding that the Insureds failed to produce sufficient evidence of theft.3 Insureds appeal. We affirm.

Sufficiency of the evidence for theft.

Insureds claim that the trial court erred in finding insufficient evidence to establish the loss of hogs by theft. They also claim the trial court improperly placed the burden of proving the loss on them. Insureds argue that the court should have required INA to prove the applicability of the exclusion for mysterious disappearance.

The policy in effect during 1984 provided in pertinent part:

[689]*689PERILS INSURED AGAINST
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THEFT or attempt thereat, including damage to the property covered, larceny, burglary and robbery....
This policy excludes loss by theft, as defined above: ...
7. ... by escape, mysterious disappearance or unaccountable shortage.

The burden of proving theft under a policy of insurance is on the insured. Ward Cattle Co. v. Farm Bureau Ins. Co., 223 Neb. 69, 388 N.W.2d 89 (1986); Anderson v. Farm Bureau Ins. Co. of Nebraska, 219 Neb. 1, 360 N.W.2d 488 (1985); Benson v. Bradford Mutual Fire Ins. Corp., 121 Ill.App.3d 500, 76 Ill.Dec. 774, 459 N.E.2d 689 (1984); Wiley v. United Fire & Casualty Co., 220 N.W.2d 635 (Iowa 1974); Long v. Glidden Mutual Ins. Association, 215 N.W.2d 271 (Iowa 1974); Gifford v. M.F.A. Mutual Ins. Co., 437 S.W.2d 714 (Mo.Ct.App.1969); 21 Appleman, Insurance Law and Practice § 12238 (1980). The insured also has the burden to prove the amount and value of the property stolen. Coastal Plains Feeders, Inc. v.

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Related

Ward Cattle Co. v. Farm Bureau Insurance
388 N.W.2d 89 (Nebraska Supreme Court, 1986)
Baugher v. Hartford Fire Insurance
521 P.2d 401 (Supreme Court of Kansas, 1974)
Long v. Glidden Mutual Insurance Association
215 N.W.2d 271 (Supreme Court of Iowa, 1974)
Benson v. Bradford Mutual Fire Insurance
459 N.E.2d 689 (Appellate Court of Illinois, 1984)
Wiley v. United Fire & Casualty Company
220 N.W.2d 635 (Supreme Court of Iowa, 1974)
Anderson v. Farm Bureau Ins. Co. of Nebraska
360 N.W.2d 488 (Nebraska Supreme Court, 1985)
Lovas v. St. Paul Insurance Companies
240 N.W.2d 53 (North Dakota Supreme Court, 1976)
Gifford v. M. F. A. Mutual Insurance Co.
437 S.W.2d 714 (Missouri Court of Appeals, 1969)

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Bluebook (online)
441 N.W.2d 686, 1989 S.D. LEXIS 96, 1989 WL 63529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/insurance-co-of-north-america-v-schultz-sd-1989.