Farm-Aero Service Inc. v. Henning Produce Inc.

• Decision Date: 27 February 1975
• Docket Number: No. 1,FARM-AERO,CA-CIV,1
• Citation: 23 Ariz.App. 239,532 P.2d 181
• Parties: SERVICE INC., an Arizona Corporation, Appellant, v. HENNING PRODUCE INC., a California Corporation, William B. Hubbard, an Individual, and Zeke Arakelian, an Individual, Appellees. 2239.
• Court: Arizona Court of Appeals

Page 181

532 P.2d 181

23 Ariz.App. 239

FARM-AERO SERVICE INC., an Arizona Corporation, Appellant, v. HENNING PRODUCE INC., a California Corporation, William B. Hubbard, an Individual, and Zeke Arakelian, an Individual, Appellees.

No. 1 CA-CIV 2239.

Court of Appeals of Arizona, Division 1, Department B.

Feb. 27, 1975.

Rehearing Denied March 27, 1975.

Review Denied April 29, 1975.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Ralph E. Hunsaker, Jolyon Grant, and Dunn, Jones, Teilborg, Sanders, Haga & Parks, P.C. by James A. Teilborg, Phoenix, for appellant.

Burch, Cracchiolo, Levie, Guyer & Weyl by C. Michael Pierce, Joseph L. Moore, Phoenix, for appellees.

OPINION

EUBANK, Judge.

This appeal questions the sufficiency of circumstantial evidence to support a jury verdict.

Appellant, Farm-Aero Service Inc., is an Arizona corporation engaged in aerial crop dusting. Appellees are produce growers with farming operations in western Maricopa County. During October 1969, an aerial applicator plane sprayed defoliant over appellees' lettuce fields causing significant damage. The growers claimed that the aircraft was owned and operated by Farm-Aero. Farm-Aero denied the allegation. During the trial which followed, appellees produced circumstantial evidence establishing Farm-Aero's responsibility for the incident. The jury returned a verdict in favor of appellees and this appeal followed.

Appellant's main contention is that the jury's verdict was contrary to the weight of the evidence. We disagree. Resort to circumstantial evidence was necessary in this case because of the failure or absence of direct proof. However, circumstantial evidence can be as persuasive as direct proof when it provides the basis for a reasonable inference as to the ultimate fact. We recognize the probative value of direct and circumstantial evidence as being essentially similar, and there is no distinction as to the weight assigned each. State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970). Our concern in this case is whether the evidence presented was sufficient to support the verdict rendered. In making this determination, we will consider the evidence in the light most favorable to sustaining the verdict and indulge in all reasonable inferences to support the judgment. City of Tucson v. Sanderson, 104 Ariz. 151, 449 P.2d 616 (1969).

On October 23, 1969, an aerial applicator plane was observed spraying what was later identified as a defoliant over the appellees' fields. A witness testified that the aircraft disappeared from view in the vicinity of a landing strip adjoining a nearby citrus grove. Appellees introduced evidence indicating that the appellant was operating an aircraft from that landing strip around the time of the damage and was spraying defoliant over nearby fields. According to the records of the State Board of Pesticide Control, no other aerial applicators were operating within six miles of appellees' property on the day in question. Two witnesses testified as to the color and construction of the airplane which caused the damage. One stated that it was a yellor or grey biplane. The other testified that the craft was yellow and grey, having a dark fuselage with yellow wing tips and an open canopy with a hump behind the cockpit. This witness identified the craft as a Grumman Ag-Cat biplane. An officer of the appellant corporation admitted that the company was operating a Grumman Ag-Cat biplane in the area during October, and that the factory colors of such craft were gunmetal grey with yellow wing tips. However, he denied that the craft was responsible for the damage and testified that it did not have an open canopy nor a hump behind the cockpit. Moreover, a work order from the company records indicated that the plane was flying in the area on October 24th, not the 23rd. According to a report filed by appellant with the Pesticide Control Board, however, the plane was operating over an area adjacent to appellees' fields on October 23rd.

Clearly, there was a conflict in the evidence which raised a question of fact for the jury to resolve. The identity of the aircraft which caused the damage was in dispute. The evidence presented by appellees made it more probable than not that the craft was owned and operated by the appellant. In civil cases, a conclusion as to an ultimate fact will be supported by the evidence if the inference that such fact exists is more probable than any other inference which can be drawn from the evidentiary facts. New York Life Ins. Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948 (1938); Udall, Evidence § 111 (1960). This test for the sufficiency of evidence applies to both direct and circumstantial evidence. See State v. Harvill, supra.

Applying it in this case, we are compelled to conclude that sufficient evidence was presented from which the jury could reasonably infer that the Farm-Aero craft was responsible for the damage.

Appellant further argues that the trial court improperly denied its motion for a directed verdict because the evidence presented required the jury to draw an unwarranted inference upon an inference. Specifically, appellant contends that the jury had to infer not only that the Farm-Aero craft was responsible for the damage, but that the pilot of the craft was acting within the scope and course of his employment. The record does not sustain appellant's argument. If the evidence was sufficient to sustain the jury's verdict, the trial court properly denied the motion for a directed verdict. Avechuco v. Awtrey, 106 Ariz. 44, 470 P.2d 451 (1970). Moreover...