Hartford Fire Ins. Co. v. Thompson

• Decision Date: 21 June 1949
• Docket Number: No. 13881.,13881.
• Citation: 175 F.2d 10
• Parties: HARTFORD FIRE INS. CO. v. THOMPSON.
• Court: U.S. Court of Appeals — Eighth Circuit

175 F.2d 10 (1949)

HARTFORD FIRE INS. CO. v. THOMPSON.

No. 13881.

United States Court of Appeals Eighth Circuit.

June 21, 1949.

H. G. Wellensiek, Grand Island, Neb. (Fred T. Hanson and Frank B. Morrison, McCook, Neb., on the brief), for appellant.

W. C. Conover, Grant, Neb., and C. E. McCarl, McCook, Neb., for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

The plaintiff recovered a judgment in the trial court upon a policy of insurance issued to him by the defendant insurance company which insured him against loss to his cattle caused by lightning limited to $1,000 on his Purebred Hereford bull, $100 per head on his cows, and $50 per head on his calves. His herd consisted of the bull, 35 cows and 15 calves, running on a half section of pasture land in Perkins County, Nebraska, enclosed by a three wire fence. All of the cattle were found dead at the same time except four cows and 13 of the calves. Two cows and the calves survived. Plaintiff alleged that lightning caused the loss and the defendant denied the allegation. On the trial of the case defendant introduced testimony tending to show that the animals died from lack of water. The jury found for the plaintiff in the amount specified in the policy for the number and kind of cattle lost (though their value was shown to be much greater), and the judgment was entered on the verdict. The insurance company appeals on the grounds (properly preserved for review) (1) that the evidence was insufficient to present a submissible case; (2) that the court erred in permitting men who were not veterinarians to give an opinion that the cause of the deaths was lightning, and (3) that the verdict was contrary to the evidence.

(1) There was evidence to show that plaintiff had long experience in raising cattle and kept the herd in question in a suitable pasture in which he had run cattle every year for five years without loss from disease, poison or sickness. It was provided with windmill, pump and tank in its northern part, and in the lower part about half a mile distant there was a lagoon. On Sunday July 28, 1946, at about 10:30 A.M. the windmill was turning and there was water in the tank. There was also water in the lagoon on that day or the day before. The cattle were in "awful nice shape." Along in the afternoon between 4 and 5 o'clock, a thunderstorm with lightning lasting five or ten minutes passed over the pasture. Lightning was seen to strike the ground three or four times and there were sheets of lightning along its course. When next seen about 48 hours later all the grown cattle in the herd except the four cows were found to be dead. Their carcasses lay in two main groups, one around the windmill and tank and the other in the mud of the lagoon from which the water had evaporated, except that one cow was lying dead on the outside of the pasture at the north end. The calves were trying to suck the dead cows. The plaintiff was notified and arrived at the pasture about four o'clock in the afternoon, an hour or so after the animals were found dead, and on view of the scene and the inspection he made he came to the conclusion that they had been killed by lightning. He had had cattle out in pasture killed by lightning every year and had carried the insurance against that hazard for several years. He had lost one cow by lightning in this pasture about a month before. His largest number killed by lightning at one time previously had been three. He notified the local agent of the insurance company on the same day the dead cattle were found and the agent employed Dr. J. P. Guffy, a veterinarian of the town of Sutherland, to examine the carcasses and the surviving cattle. Dr. Guffy made such examination on the following morning in company with the insurance adjuster and others, and on the next day brought two state veterinarians to the scene to make their examinations. A specimen was removed from the stomach of one of the cows and preserved for laboratory examination and the carcasses were hauled off to a rendering plant at North Platte where they were processed.

There was evidence that marks were seen on some of the carcasses while they were at the pasture, described as being like a "brand," which according to the dictionary is "a mark made by burning with a hot iron," and as "brown streaks like singed hair from the shoulder down their legs and backs." The animals appeared to have died without struggle. They were not thin or emaciated and they had not paced along the fence or breached it. Nor had they been heard making any noises or commotion. Their eyes were "popping" and their horns, teeth and hooves were loose. One of the cows was observed to have a rupture of the external tissues. Men employed at the rendering plant said that black marks under the chin down the front legs were observed, about the width of an index finger and with the appearance that a hot iron had been run across the hide and burned it. They also said that the flesh of the animals when they were cut up looked like fresh butchered beef, having bright colored meat with normal amount of moisture. The hides could not be saved because they adhered too tightly to the flesh to permit separation, which was thought by some to indicate death from lightning and by others to indicate death from lack of water.

The plaintiff himself and a Mr. Loren Morris, superintendent of the rendering plant, who had long been engaged in processing dead animals and had examined over a thousand carcasses of animals that had been killed by lightning, each gave it as his opinion that the plaintiff's cattle were killed by lightning.

The appellant does not contend that the evidence showed that the loss of the cattle was caused by poisoning or disease. There was no epidemic in the area and no losses occurred at or about the time among cattle running in the numerous other pastures in that country. The laboratory tests made by the state veterinarians did not show poison in the stomach of the cow from which the specimen was taken.

The insurance adjuster who had had 18 years experience in adjusting losses of cattle alleged to be killed by lightning said that burn marks are not always visible on animals that have been killed by lightning¹ and although in two-thirds of the cases he had had they had been found near a fence, metal stock tanks or a tree that had attracted the lightning, in about one-third of the cases they were struck or lay out in the open pasture. Dr. Guffy gave it as his opinion that the cattle in question died from lack of water and that was the opinion given in answer to hypothetical questions by the witness Fred M. Maxfield, a veterinarian who testified as an expert on defendant's behalf. A skinner employed at the rendering plant, called by defendant, who had seen the carcasses also expressed the opinion that the cattle had not died from lightning but from lack of water. The adherence of the hide to the flesh indicated...