Ward Cattle Co. v. Farm Bureau Insurance

Krivosha, C. J.,

concurring in the result.

For reasons more specifically set out in my separate concurrences in Anderson v. Farm Bureau Ins. Co., 219Neb. 1, 360 N.W.2d 488 (1985), and In re Estate of Price, ante p. 12, 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 rules which are, in my view, inconsistent. The majority first says that “circumstantial evidence alone is insufficient to sustain a verdict unless the circumstances proved by the evidence are ‘of such nature and so related to each other that the conclusion reached ... is the only one that can fairly and reasonably be drawn ....’” (Emphasis supplied.) Having said that, the majority then says: “[T]he evidence must be such as to make ‘the plaintiffs’ theory of causation reasonably probable, not merely possible. . . . There must be something more which would lead a reasoning mind to one conclusion rather than to the other.’ ” (Emphasis supplied.) It is inconsistent to, on the one hand, hold that the evidence must be such that only one conclusion can be reached and, at the same time, on the other hand, hold that there “must be something more which would lead a reasoning mind to one conclusion rather than to the *75other.” If something is the “only” conclusion which can be reached, it can never be the better of two possibilities.

Shanahan, J., joins in this concurrence.