Long v. Glidden Mutual Insurance Association ( 1974 )

McCORMICK, Justice.

Defendants appeal judgment in a law action tried to the court allowing plaintiffs theft insurance recovery for loss of 400 bushels of soybeans. The sole issue is the sufficiency of evidence to support trial court’s finding the loss was caused by theft. We affirm.

Trial court findings of fact in a law action are binding on us if supported by substantial evidence. We view the evidence in its most favorable light to sustain those findings. Where, as here, circumstantial evidence is relied on, it must be sufficient to make the theory asserted reasonably probable, not merely possible, and more probable than any other theory based on such evidence; however, it is generally for the trier of fact to say whether circumstantial evidence meets this test.

Plaintiff Alvin Long leases a Carroll County farm owned by plaintiff Winifred McKeon on a crop share basis. Long was insured against crop theft by defendant Sac Farmers Mutual Insurance Association and McKeon was similarly insured with defendant Glidden Mutual Insurance Association.

Trial court found Long harvested about 3000 bushels of soybeans from the McKeon land in 1971 and put them in three overhead bins of a corn crib on the farm. During February 1972 Long inspected the granary and noted the bins were full. On March 7, 1972, while preparing to deliver the bears to market, Long discovered one oj. .. “A bushels short. He immediately notified n. insurance agent and the sheriff. Investigation disclosed no evidence of tire marks or spilled beans at the scene. A hard-surfaced driveway extended from the road to the crib. The building was unlocked. Beans could be unloaded by gravity through a spout which would lower to within a foot of a wagon or truck box. Trial court concluded the beans were stolen by a thief using a truck which entered the crib alleyway from the driveway.

In denying coverage of the loss defendants rely on a provision common to their policies:

“ * * * Loss by theft of insured personal property shall require substantial proof of theft by the insured. No coverage shall apply to loss caused by or resulting from mysterious disappearance or to loss discovered through inventory, or to loss by other unaccountable shortages.”

Two questions are presented by this appeal. Did plaintiffs offer substantial proof of theft? Did defendants prove coverage was excluded as a matter of law ?

I. Plaintiffs’ evidence. Under the law and policy terms plaintiffs had the burden to present substantial evidence the beans were lost through theft. Cole v. Hartford Acc. & Ind. Co., 242 Iowa 416, 46 N.W.2d 811 (1951); 21 Appleman, Insurance Law and Practice, § 12238 at 180 (1962). Circumstantial evidence may be sufficient. Kroloff v. Southern Surety Co., 197 Iowa 1244, 198 N.W. 629 (1924).

The term “theft” is not defined in the policy. It thus has its popular meaning as a word of general and broad connotation covering any wrongful appropriation of another’s property to the use of the taker. Fidelity & Casualty Co. of New York v. Wathen, 205 Ky. 511, 266 S.W. 4 (1924); 5 Appleman, Insurance Law and Practice, supra, § 3171 at 490-491; see Rodman v. State Farm Mutual Automobile Ins. Co., 208 N.W.2d 903, 905-906 (Iowa 1973). An insured need not prove the identity of the thief. Weir v. Central Nat. F. Ins. Co., 194 Iowa 446, 189 N.W. 794 (1922).

Proof of theft requires more than proof of mere disappearance. But an inference of theft is justified when property disappears without the knowledge or authority of its owner in circumstances tending to show it was not accidentally mislaid or lost and did not stray by itself. See, e. g., Weir v. Central Nat. F. Ins. Co., supra (automobile disappeared from repair shop); Sowden v. United States Fidelity & Guaranty Co., 122 Kan. 375, 252 P. 208 (1927) (jewelry disappeared from the top of a chiffonier in plaintiff’s home).

The soybeans were of a quantity and bulk not readily susceptible to being accidentally mislaid or lost. See Hayward v. Employer’s Liability Assur. Corporation, 214 Mo.App. 101, 257 S.W. 1083, 1084 (1924) (theft of liquor — “The property here is of bulk and proportion that could not easily be lost or misplaced.”). Further, unlike livestock, soybeans will not stray away by themselves. Cf. Gifford v. M. F. A. Mutual Insurance Co., 437 S.W.2d 714 (Mo.App.1969) (cattle); Raff v. Farm Bureau Insurance Co. of Nebraska, 181 Neb. 444, 149 N.W.2d 52 (1967) (hogs).

Absence of tire marks, spillage and physical indicia of forcible entry in this case is not inconsistent with a finding of theft. Unfortunately, the beans were stored in such a way they could be stolen without leaving a sign of entry.

There was sufficient circumstantial evidence to allow the trier of fact to find it reasonably probable, and more probable than any other theory based on the evidence, that the 400 bushels of beans were taken from the granary in late February or early March 1972 by some person for his own use without the consent of plaintiffs. Hence there was substantial proof of theft.

II. The exclusion. Defendants rely on the policy provision excluding coverage of loss caused by mysterious disappearance, inventory shortage, or other unaccountable shortage. They overlook the fact an insurer has the burden to prove the applicability of a policy exclusion. Rich v. Dyna Technology, Inc., 204 N.W.2d 867, 871 (Iowa 1973). The insured is not required to negate the exclusion in order to present a prima facie case of theft. Jewelers Mutual Insurance Company v. Balogh, 272 F.2d 889 (5 Cir. 1959). Once the insured has offered substantial evidence of theft the burden is on the insurer who asserts the exclusion to prove the loss was caused by an excluded event. 21 Appleman, Insurance Law and Practice, supra, § 12238 at 182; 46 C.J.S. Insurance § 1359 at 561.

Trial court found plaintiffs’ loss was caused by theft rather than an excluded event. This finding is supported by substantial evidence. Defendants did not establish their defense as a matter of law. Trial court’s judgment must be sustained.

Affirmed.

All Justices concur except REES, J., MOORE, C. J., and UHLENHOPP, J., who dissent. HARRIS, J., takes no part.