329 N.W.2d 295 (Iowa 1983), 67680, Graen's Mens Wear, Inc. v. Stille-Pierce Agency

Docket Nº:67680.
Citation:329 N.W.2d 295
Party Name:GRAEN'S MENS WEAR, INC., an Iowa Corporation, and Jack Graen, individually, Appellants, v. STILLE-PIERCE AGENCY, Steven Stille and Tim Pierce, Appellees.
Case Date:January 19, 1983
Court:Supreme Court of Iowa

Page 295

329 N.W.2d 295 (Iowa 1983)

GRAEN'S MENS WEAR, INC., an Iowa Corporation, and Jack Graen, individually, Appellants,


STILLE-PIERCE AGENCY, Steven Stille and Tim Pierce, Appellees.

No. 67680.

Supreme Court of Iowa.

January 19, 1983

Page 296

Clarence Dan Connell and John W. Duffy of Connell & Duffy, P.C., Storm Lake, for appellants.

Maurice B. Nieland of Kindig, Beebe, Rawlings, Nieland & Killinger, Sioux City, and Wendell Pendleton of Pendleton Law Firm, Storm Lake, for appellees.


REYNOLDSON, Chief Justice.

There was a jury verdict for defendants insurance agency and its partners in this action for damages resulting from defendants' alleged negligent failure to procure burglary insurance plaintiff Graen requested for his Storm Lake clothing store. Plaintiffs, appealing, raise several evidentiary issues. Because plaintiff Graen's Mens Wear, Inc., apparently is a closely held corporation, we shall refer to Jack Graen as the sole plaintiff.

Plaintiff testified that in 1976 he told defendant Pierce he wanted "wind, fire, theft, liability and workmen's comp" insurance, and the latter replied "he was going to take care of me." In the spring of 1977

Page 297

plaintiff told Pierce to put the insurance into effect, but he never saw the policy. He further testified that on June 4, 1979, alarmed by a large burglary loss in another town, he called Pierce and asked "[i]f anything like this would happen to me, would I be okay?", to which Pierce replied, "Pal, don't worry about it. You're taken care of."

August 12, 1979, one of plaintiff's stores was burglarized, with an extensive loss of merchandise. Plaintiff testified that when he reported the loss to defendant Stille the latter stated, "Don't worry. You're covered." Later in the day he was told there was no coverage for the loss.

Defendants' evidence controverted the above testimony. Pierce testified that although plaintiff never asked for theft insurance he nonetheless made application to Aetna Life and Casualty Company for "all risk" insurance that would have included theft. The company replied in writing (placed in evidence), "Do not quote all risk due to lack of alarm systems." Pierce stated that when he told plaintiff an alarm system would cost between $800 to $1000 the latter took the position he was not interested in that coverage. When the policy arrived, Pierce testified he went over it with plaintiff and carefully explained its features.

Defendants denied they ever told plaintiff he had theft coverage. Pierce offered proof he was attending an out-of-state golf tournament on June 4, 1979, the day plaintiff allegedly telephoned him regarding his insurance coverage.

Other relevant facts will be set out in our discussion of the evidentiary issues in the following divisions. Plaintiff contends trial court committed error in excluding certain testimony of a witness to an alleged telephone conversation, in excluding testimony of witnesses relating to prior consistent statements, in admitting evidence as business records, and in admission of evidence to contradict a stipulation.

  1. Excluded Testimony of Witness to Telephone Conversation.

    Plaintiff offered the testimony of his employee Beverly Keen as a bystander to the telephone conversation he allegedly had with Pierce on June 4, 1979. She could hear only plaintiff's part in the conversation. Trial court sustained motions to strike her conclusory statements that plaintiff was talking to Pierce, except for one volunteered statement that "[h]e called Mr. Pierce Tim. That's why I know that was the person he was talking to." Trial court admonished this witness "to answer your counsel's question exactly as to what you heard Mr. Graen say and make no assumptions."

    Plaintiff asserts the court's rulings were erroneous for two reasons: (1) plaintiff earlier testified he was calling Pierce and (2) "testimony of a bystander to a telephone conversation is admissible even though the ... bystander cannot state with certainty who the person on the other end of the line is." Defendants contend trial court correctly limited Keen's testimony to what she heard plaintiff say into the receiver, that the ruling was within the court's judicial discretion and nonprejudicial to plaintiff.

    A "basic requirement for a witness who is not testifying as an expert is that his testimony be founded upon personal knowledge, whether the testimony be the expression of the witness' opinion or a shorthand rendering of fact." Meeker v. City of Clinton, 259 N.W.2d 822, 831 (Iowa 1977). Here Keen had no personal knowledge identifying the person to whom plaintiff allegedly was talking. She was permitted to relate his name as used by plaintiff, together with the other portions of the alleged conversation that she recalled. Under Meeker, Keen failed to...

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