Brown v. Farmers Mut. Ins. Co. of Nebraska

• Decision Date: 12 April 1991
• Docket Number: No. 89-130,89-130
• Citation: 468 N.W.2d 105,237 Neb. 855
• Parties: Dale BROWN and Donna Brown, Husband and Wife, Appellees, v. FARMERS MUTUAL INSURANCE COMPANY of NEBRASKA, a Nebraska Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 105

468 N.W.2d 105

237 Neb. 855

Dale BROWN and Donna Brown, Husband and Wife, Appellees, v. FARMERS MUTUAL INSURANCE COMPANY of NEBRASKA, a Nebraska Corporation, Appellant.

No. 89-130.

Supreme Court of Nebraska.

April 12, 1991.

Syllabus by the Court

1. Appeal and Error. Errors assigned but not discussed in an appellant's brief are not considered by this court.

2. Appeal and Error. In an action at law, the Supreme Court views the evidence in the light most favorable to the prevailing party.

3. Directed Verdict: Waiver. A defendant who moves for a directed verdict at the close of the plaintiff's evidence and, upon the overruling of such motion, proceeds with trial and introduces evidence waives any error in the ruling on the motion for a directed verdict.

4. Jury Instructions: Proof: Appeal and Error. In order to establish as error the trial court's refusal to give a requested instruction, an appellant is under a threefold burden to show that he or she was prejudiced by the court's refusal, that the tendered instruction is a correct statement of the law, and that the instruction is applicable to the evidence in the case.

5. Jury Instructions: Appeal and Error. All the jury instructions given must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal.

6. Jury Instructions: Appeal and Error. It is not error on the part of a trial court to refuse to give a requested instruction if the substance of that request is contained in the instructions actually given.

7. Trial: Rules of Evidence: Expert Witnesses. In determining whether an expert's testimony is admissible pursuant to the Nebraska Evidence Rules, a court considers, among other interrelated questions, whether the expert's testimony is relevant.

8. Rules of Evidence: Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. To be relevant, evidence must be rationally related to an issue by a likelihood, not a mere possibility, of proving or disproving an issue to be decided.

9. Trial: Rules of Evidence: Expert Witnesses. Although an expert's testimony may be relevant, it may be excluded if the probative value of the testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.

10. Trial: Evidence: Rules of Evidence: Appeal and Error. A trial court's ruling on the relevancy of evidence will not be disturbed on appeal unless there has been an abuse of discretion, and the trial court's ruling with respect to Neb.Rev.Stat. § 27-403 (Reissue 1989) is likewise reviewed under an abuse of discretion standard.

11. Trial: Expert Witnesses. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

12. Trial: Expert Witness. No exact standard is possible for fixing the qualifications of an expert or skilled witness. An expert or skilled witness will be deemed qualified if, and only if, he or she possesses special skill or knowledge respecting the subject matter involved so superior to that of men in general as to make his or her formation of a judgment a fact of probative value.

13. Trial: Expert Witnesses: Appeal and Error. A trial court's factual finding that a witness qualifies as an expert will be upheld on appeal unless clearly erroneous.

14. Trial: Evidence: Appeal and Error. If a general objection on the basis of insufficient foundation is overruled, the objecting party may not complain on appeal unless (1) the ground for exclusion was obvious without stating it or (2) the evidence was not admissible for any purpose.

15. Trial: Expert Witnesses. Generally, expert testimony is admissible only if it will be of assistance to the jury in its deliberations and relates to an area not within the competency of ordinary citizens.

16. Trial: Expert Witnesses: Appeal and Error. The determination of whether an expert's testimony or opinion will be helpful to a jury or assist the trier of fact will be upheld on appeal unless the trial court abused its discretion.

17. Rules of Evidence: Expert Witnesses: Hearsay. Rule 703 of the Nebraska Evidence Rules allows experts to rely on hearsay facts or data reasonably relied upon by experts in the field as a basis for their opinion.

18. Insurance: Contracts. In order to recover under an insurance policy of limited liability, an insured must bring himself or herself within its express provisions.

19. Insurance: Contracts. When the terms of an insurance policy are clear, they are to be accorded their plain and ordinary meaning.

20. Insurance: Contracts: Intent. When a clause in an insurance contract can fairly be interpreted in more than one way, there is ambiguity to be resolved by the court as a matter of law. The resolution of an ambiguity in a policy of insurance turns not on what the insurer intended the language to mean, but what a reasonable person in the position of the insured would have understood it to mean at the time the contract was made. In the case of ambiguity in an insurance contract, a construction favorable to the insured prevails so as to afford coverage.

21. Insurance: Liability: Evidence: Proximate Cause. In determining the cause of a loss for the purpose of fixing insurance liability, when evidence of concurring causes of the damage appears, the proximate cause to which the loss is to be attributed is the dominant one that sets the other causes in operation. Causes which are incidental are not proximate, though they may be nearer in time and place to the loss.

Leland K. Kovarik, of Holtorf, Kovarik, Nuttleman, Ellison, Mathis & Javoronok, P.C., Gering, for appellant.

Steven C. Smith, of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, P.C., Scottsbluff, for appellees.

HASTINGS, C.J., and WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

FAHRNBRUCH, Justice.

Farmers Mutual Insurance Company of Nebraska (Farmers) appeals a $16,636.70 jury verdict which determined that sheep owned by Dale and Donna Brown were stolen and that the loss was, therefore, covered under the theft provisions of an insurance policy issued to the Browns by Farmers. We affirm.

Farmers' six assignments of error combine to allege that the trial court erred in (1) overruling Farmers' motion for a directed verdict, (2) failing to give a requested instruction, (3) permitting two law enforcement officers to testify that a livestock thief or thieves were operating in Dawes County, (4) permitting testimony of a decrease in wool subsidy payments and allowing the jury to include such amount in its verdict when the policy covered only "direct loss to insured farm personal property," and (5) not applying the applicable $100 deductible to each theft proven. The fifth assignment of error is not discussed in Farmers' brief. "Errors assigned but not discussed in an appellant's brief are not considered by this court. [Citations omitted.]" Horst v. Johnson, 237 Neb. 155, 156, 465 N.W.2d 461, 462 (1991). We, therefore, will consider only the first four assignments of error listed above.

In an action at law, the Supreme Court views the evidence in the light most favorable to the prevailing party. McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990). In the light most favorable to the plaintiffs, the record reflects the following:

The Browns operate a farm/ranch in Dawes County, consisting of approximately 1,400 acres upon which they graze approximately 400 to 500 head of ewes. Before their annual sale, the Browns also raise 400 to 500 lambs. The Browns further maintain 3 rams for every 100 ewes. At the time of trial, the Browns had been engaged in the sheep-raising business for 25 years.

The sheep were kept in two pastures which were north of the Browns' home and which were designated at trial as the west pasture and the north pasture. The west pasture was completely enclosed by a fence. Fencing surrounded the north pasture, except where it was bounded by a large, deep canal and Lake Whitney. The fence extended to a point where the depth of the lake was 4 feet, and the fence was lengthened or shortened to coincide with changes in the lake's water level.

The fences enclosing the sheep were 36-inch woven wire topped by three strands of barbed wire. The total height of the fences was 4 1/2 to 5 feet. The fenceposts were constructed of steel. There was testimony that the fences were regularly repaired and rebuilt. Dale Brown (Brown) checked the fences numerous times each day. The fence gates were constructed in the same sheep-tight fashion as the fences, except that a post was attached horizontally to the bottom to prevent the sheep from escaping underneath the gates. The gates were not locked, but were held in place by attaching a wire to a post and tightening it. Brown testified that the last chore each evening was to check to ensure that the herd was where it belonged and that the gates were closed.

Sheep tend to herd together and are not prone to escape from fencing. Brown testified that on occasion, one or two sheep had escaped, but he was always able to recover them. He further testified that in his 25 years of operating a sheep ranch, he had never lost a sheep by escape.

In 1986 and 1987, the Browns' sheep were counted in their entirety three times per year: (1) when the sheep were sheared, which was normally in February; (2) when the ewes were lambing,...