Graen's Mens Wear, Inc. v. Stille-Pierce Agency

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

Page 295

329 N.W.2d 295

GRAEN'S MENS WEAR, INC., an Iowa Corporation, and Jack Graen, individually, Appellants, v. STILLE-PIERCE AGENCY, Steven Stille and Tim Pierce, Appellees.

No. 67680.

Supreme Court of Iowa.

Jan. 19, 1983.

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.

Considered by REYNOLDSON, C.J., and LeGRAND, UHLENHOPP, HARRIS, and McCORMICK, JJ.

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 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.

I. 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 satisfy the basic requirement of a testifying witness. We find no abuse of trial court's discretion in sustaining defendants' objections and striking Keen's conclusions that plaintiff was talking to Pierce. See State v. Whitfield, 315 N.W.2d 753, 755 (Iowa 1982) ("A trial court ruling on a competency question is discretionary and will be reversed only if an abuse of discretion is shown.").

II. Excluded Testimony of Witnesses Relating to Prior Consistent Statements.

Plaintiff attempted to question store employees Beverly Keen and Brad Sargent concerning what plaintiff had told them following his alleged telephone conversation with Pierce on June 4, 1979. Hearsay objections to these questions were sustained.

After plaintiff's testimony regarding the alleged call, defendants, cross-examining, sought to impeach him through his discovery deposition concession that at no time before the burglary did defendants Pierce or Stille tell plaintiff his store was covered for theft and burglary loss. Plaintiff asserts this provided the necessary foundation for admission of the Keen and Sargent testimony under Federal Rule of Evidence 801(d)(1)(B), ¹ which rule, he argues, we should adopt.

We are neither required to consider plaintiff's proposal, nor test the court's rulings under our applicable decisions. See State v. Cornell, 266 N.W.2d 15, 20 (Iowa), cert. denied, 439 U.S. 947, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978); State v. Galloway, 187 N.W.2d 725, 728 (Iowa 1971); State v. Vincent, 24 Iowa 570, 574-75 (1868). Assuming the witnesses' rejected testimony was rehabilitative, trial court's error, if any, was not preserved. No offer of proof showing how these witnesses would have responded was made. See State v. Gartin, 271 N.W.2d 902, 909-10 (Iowa 1978); Hayes v. Chicago, Rock Island & Pacific Railway, 239 Iowa 149, 151-52, 30 N.W.2d 743, 745 (1948). Upon the whole record we do not think what plaintiff sought to prove was so apparent that a proffer was unnecessary. Sandon v. John Hancock Mutual Life Insurance Co., 245 Iowa 390, 394-95, 62 N.W.2d 247, 250 (1954); see Hartwig v. Olson, 261 Iowa 1265, 1271-72, 158 N.W.2d 81, 85 (1968); American Express Co. v. Des Moines National Bank, 177 Iowa 478, 494, 152 N.W. 625, 630 (1915). No reversible error appears here.

III. Admission of Business Records.

Upon cross-examination plaintiff denied he had rejected all risk insurance for a store he owned in Estherville. For impeachment, defendants called as a witness Lee Barnes, an Estherville insurance agent who wrote the insurance plaintiff carried on that store. Barnes described his agency's established practice of keeping a log of all incoming phone calls. He produced a log describing an incoming telephone message from Jack Graen on February 19, 1976, "Inc[rease personal property coverage] to 120,000 & don't add all risk." Barnes did not personally make the log entry. The office employee who did testified she no longer had an independent recollection of making it. When the page of the log book containing this entry was offered, plaintiff objected on the grounds there was no foundation to establish the call actually was made by Jack Graen, the exhibit constituted hearsay, and the business record exception to the hearsay rule did not permit admission of business records from nonparties. On appeal plaintiff does not rely on the last ground.

We have held Iowa Code section 622.28 (business records) is to be construed liberally. Shinrone, Inc. v. Tasco, Inc., 283 N.W.2d 280, 287 (Iowa 1979); State v. Lain, 246 N.W.2d 238, 242 (Iowa 1976). Further, trial court is accorded "broad discretion" to determine whether the statute's requirements are met. See State v. Anderson, 159 N.W.2d 809, 815 (Iowa 1968); see also Prestype, Inc. v. Carr, 248 N.W.2d 111, 117 (Iowa 1976) ("considerable discretion"). The record before us discloses all of the section 622.28 requirements for admission of the controverted exhibit were satisfied. Trial court did not abuse its discretion in overruling plaintiff's objections.

IV. Admission of Evidence Contradicting Stipulation.

When the trial commenced plaintiff produced a memorandum copy of the policy of insurance, which for identification was marked "plaintiffs' exhibit 1." The following record was made:

MR. CONNELL [plaintiff's counsel]: At this time, Mr. Nieland, can we stipulate and agree for the record that Plaintiffs' Exhibit No. 1 is the memorandum copy of insurance that the Stille-Pierce Agency had in their possession at the time this loss occurred?

MR. NIELAND [defense counsel]: So agreed.

The exhibit then was offered and received in evidence.

Several days into the trial, when defendant Stille was under cross-examination, plaintiff's counsel suggested to him there was a form among the papers comprising exhibit 1 that would provide theft coverage. Stille replied he would be surprised if there was. Asked to search the papers, Stille then confirmed that included in the then 24-page exhibit was a "MP 101A form" that "would give theft coverage."

On redirect examination Stille testified he had sent the memorandum of insurance to...