Bankers Life & Casualty Company v. Kirtley

• Decision Date: 24 August 1962
• Docket Number: No. 16930.,16930.
• Citation: 307 F.2d 418
• Parties: BANKERS LIFE & CASUALTY COMPANY, Appellant, v. C. M. KIRTLEY, Trustee in Corporate Reorganization Proceedings of Automatic Washer Company, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

307 F.2d 418 (1962)

BANKERS LIFE & CASUALTY COMPANY, Appellant, v. C. M. KIRTLEY, Trustee in Corporate Reorganization Proceedings of Automatic Washer Company, Appellee.

No. 16930.

United States Court of Appeals Eighth Circuit.

August 24, 1962.

COPYRIGHT MATERIAL OMITTED

S. David Peshkin, of Bridges & Peshkin, and Wendell B. Gibson, of Gibson, Stewart & Garrett, Des Moines, Iowa, made argument for appellant and filed brief.

Howard A. Steele, of Bradshaw, Fowler, Procter & Fairgrave, Des Moines, Iowa, made argument for appellee and W. Z. Proctor and H. M. Coggeshall, Des Moines, Iowa, with him on the brief.

Before VOGEL, VAN OOSTERHOUT and MATTHES, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by Bankers Life & Casualty Company, hereinafter called Bankers, from a judgment entered against it based upon a jury verdict for $1,056,250. Of this amount, $406,250 was for compensatory damages and $650,000 was for exemplary damages.

The plaintiff is trustee of Automatic Washer Company by virtue of appointment made on November 2, 1956, in a corporate reorganization proceeding under Chapter X of the National Bankruptcy Act pending in the United States District Court for the Southern District of Iowa.

Automatic Washer Company is a Delaware corporation with its principal place of business at Newton, Iowa. Like the parties, we will refer to the plaintiff and the corporation for which he is acting as Automatic. Bankers is an Illinois corporation with its principal place of business at Chicago, Illinois. It is engaged in the insurance business and is authorized to transact business in Iowa. Jurisdiction, based upon diversity of citizenship, is established.

The pertinent facts and issues are well summarized in an opinion by Judge Stephenson, reported at 198 F.Supp. 30. In his opinion, Judge Stephenson sets forth the reasons why he believes that Bankers' motions for judgment n. o. v. and for a new trial should be overruled. We adopt the trial court's statement of the facts and issues as set forth in that opinion.

The theory underlying Automatic's cause of action is that Bankers, after becoming the dominant stockholder of Automatic in May of 1956, wrongfully caused Automatic to acquire from the Martin Development Corporation a $225,000 note of Schuster Oil and Gas Corporation, secured by a mortgage upon its oil holdings and other assets, in exchange for 25,000 shares of Bellanca stock owned by Automatic. It is alleged that such stock was worth $500,000 and that the note and mortgage acquired therefor was worth only $50,000.

Bankers denies it had any part in inducing Automatic to purchase the Schuster note and mortgage; denies any fraud or unfair dealing upon its part; and further asserts that the note and mortgage were worth more than the Bellanca stock given therefor.

The jury found against Bankers upon all of such issues and in answer to an interrogatory specifically determined that Bankers did cause Automatic to enter into the purchase of the Schuster note and mortgage as alleged.

Bankers, at the close of plaintiff's evidence and again at the close of all the evidence, made appropriate motions for directed verdict and after an adverse verdict, made motion for judgment n. o. v. upon the basis of the grounds urged in its motion for directed verdict, and also made a motion for a new trial based upon the excessiveness of the verdict. All of such motions were overruled. This timely appeal followed.

Bankers asserts it is entitled to a reversal for the following reasons:

"I.

"The Court erred in denying the appellant\'s motion for a directed verdict and/or new trial in that the Court failed to observe and apply the rules that should be followed in ruling upon a motion for a directed verdict.

"II.

"The Court erred in denying the appellant\'s motion for a directed verdict and/or new trial in that the record and evidence were insufficient to warrant submission of the case to the Jury on the issue that Bankers (appellant) defrauded Automatic (appellee) by causing the exchange of 25,000 shares of Bellanca stock for a $225,000.00 note and mortgage executed by Schuster Gas & Oil Corporation and payable to Martin Development Corporation.

"III.

"The Court erred in denying the appellant\'s motion for a directed verdict and/or new trial in that the record and evidence were insufficient to warrant submission of the case to the jury on the issue of compensatory damages for the reason that all evidence submitted by the plaintiff on this point was based on mere conjecture and speculation.

"IV.

"The Court erred in denying the appellant\'s motion for a directed verdict and/or new trial in that the record and evidence were insufficient to warrant submission of the case to the Jury on the issue of exemplary damages. Furthermore, even if there was a basis for such a finding for exemplary damages, the amount of the exemplary damages assessed by the Jury was confiscatory, grossly excessive and passion and prejudice fairly appears to have been an inducing cause thereof."

The first three errors asserted are closely related and will be considered together. They challenge the sufficiency of the evidence to support any judgment in favor of Automatic. There is some question whether the sufficiency of the evidence to support a verdict must be tested by federal standards or by Iowa standards. Bankers contends Iowa standards should prevail, while Automatic urges that federal tests should be applied, but states that no difference exists between the Iowa and federal rules upon the issues here in controversy. The question of whether, in a diversity case, state or federal rules should apply on the question of determining the sufficiency of evidence to support the verdict has not been settled by the Supreme Court. Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935; Ford Motor Co. v. Mondragon, 8 Cir., 271 F.2d 342, 345.

In the Ford case, we examined both the Iowa and the federal law on the question of sufficiency of circumstantial evidence to support a verdict and reached a conclusion that no material difference existed in the tests applied. We there stated:

"The Iowa rule with reference to the test of the sufficiency of circumstantial evidence to support a verdict has been liberalized in recent years. Iowa has abandoned the `exclusion of every other hypothesis rule\' and now follows the `more reasonably probable rule.\' Soreide v. Vilas & Co., 247 Iowa 1139, 78 N.W. 2d 41, 43; Bokhoven v. Hull, 247 Iowa 604, 75 N.W.2d 225, 227; Little v. Watkins Motor Lines, 8 Cir., 256 F.2d 145, 149; Guyer v. Elger, 8 Cir., 216 F.2d 537, 539. The federal cases just cited involve the Iowa law. In the Bokhoven case, the court states (75 N.W.2d at page 227):

"`* * * we are firmly committed to the rule that plaintiff\'s theory of causation need not be proved by evidence so clear as to exclude every other possible theory. The evidence must be such as to make that theory reasonably probable, not merely possible, and more probable than any other hypothesis based on such evidence * * *.\'

"It would appear that the test of the sufficiency of circumstantial evidence under federal law would be substantially the same." 271 F.2d 345.

Automatic in its brief thus states the test to be applied in determining the sufficiency of the evidence to support the verdict:

"No doubt a case should not be submitted to a jury unless the evidence would sustain a verdict in plaintiff\'s favor; a mere scintilla of evidence will not support a verdict; and the burden of proof is on plaintiff. In cases involving an intent to defraud, the Courts, both state and federal, have often said that fraud is not presumed; that the evidence must be clear and convincing; and that a mere preponderance is not sufficient."

Bankers agrees that such is a proper statement of the test.

In determining the sufficiency of the evidence to support the verdict, we must view the evidence in the light most favorable to the prevailing party, giving such party the benefit of all inferences that may reasonably be drawn from the evidence. Ford Motor Co. v. Mondragon, supra; Clinton Foods, Inc. v. Youngs, 8 Cir., 266 F.2d 116.

Responsibility for resolving doubtful issues of fact rests upon the jury. We are not authorized to try a case de novo and to substitute our judgment for that of the fact-finder. Factual determinations of the jury cannot be upset if they are supported by substantial evidence. Transport Mfg. & Equip. Co. v. Fruehauf Trailer Co., 8 Cir., 295 F.2d 223, 227; Coca Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F.2d 859, 860; Pendergrass v. New York Life Ins. Co., 8 Cir., 181 F.2d 136.

It is true, as asserted by Bankers, that it has introduced in support of its contentions direct evidence of Automatic's former president Chamberlin and of Mr. Little, Bankers' former vice-president, which has not been directly contradicted. The question of the credibility of witnesses and the weight to be given testimony is for the jury. The jury is not compelled to accept as true the testimony of any witness. Powers v. Continental Casualty Co., 8 Cir., 301 F.2d 386, 388; Noland v. Buffalo Ins. Co., 8 Cir., 181 F.2d 735, 738; Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 440.

The record in this case is quite lengthy and complicated. The parties are familiar with the testimony. No useful purpose would be served by prolonging this opinion with a detailed discussion of the conflicting evidence. We have very carefully considered the entire record. Our examination of the evidence satisfies us, as it did the able trial court, that there is substantial evidence to support the verdict of the jury on the issue of liability as well as upon the compensatory damage issue. Thus the court committed no error in overruling Bankers' motions for directed verdict and for judgment n. o. v.

This leaves for consideration point IV attacking the award of punitive damages. The attack is...