Gregory v. Sorensen

• Decision Date: 07 May 1929
• Docket Number: 39335
• Citation: 225 N.W. 342,208 Iowa 174
• Parties: ROY GREGORY, Appellee, v. OLIVER SORENSEN, Appellant
• Court: Iowa Supreme Court

225 N.W. 342

208 Iowa 174

ROY GREGORY, Appellee, v. OLIVER SORENSEN, Appellant

No. 39335

Supreme Court of Iowa, Des Moines

May 7, 1929

Appeal from Shelby District Court.--H. J. MANTZ, Judge.

This was an action by the plaintiff against the defendant to recover compensatory and exemplary damages for the destruction of growing plants, flowers, and bulbs in a greenhouse. Damages were allowed by the jury, and the defendant appeals.

Reversed.

Thomas H. Smith and Bennett Cullison, for appellant.

Ernest M. Miller, for appellee.

KINDIG J. ALBERT, C. J., and EVANS, FAVILLE, and GRIMM, JJ., concur.

OPINION

KINDIG, J.

The plaintiff-appellee was engaged in the business of operating a greenhouse in the city of Harlan. Both he and the defendant-appellant were residents of that city. On the night of April 8, 1924, someone broke and entered the greenhouse. When therein, said culprit, whoever he was, pulled up and cut flowers, plants, and bulbs, thereby destroying them. Appellant was accused by appellee of being the guilty party and, on November 21, 1926, this action was commenced, to obtain compensation for the financial loss in the sum of $ 1,500 and punitive damages in the amount of $ 3,500. Upon that basis, the cause was submitted to a jury, which returned a verdict in appellee's favor against the defendant in the sum of $ 4,905, allocated as follows: $ 1,405 compensatory and $ 3,500 punitive damages.

Several assignments of error are made, and many reasons given as to why there should be a new trial. Of these, however, we find it necessary to consider but one. It relates to the court's instruction concerning the burden of proof applicable to the so-called "alibi" defense. (As to whether or not an "alibi" defense will, in any event, apply to a civil case, we do not now decide.) In the case at bar, the appellee in his petition charged that the appellant committed the tort, and thus caused the damages aforesaid. By way of answer to appellee's pleading, appellant interposed a general denial only. He pleaded no special defense. Hence, the issue was a simple one, no broader than this: Did appellant break into the greenhouse and damage the property? Such was the charge made by appellee, and upon him rested the burden of proof. Appellee affirmed, while the appellant merely denied. During the trial, the appellant, as an explanation of his whereabouts at the time in question, testified that he was at home in Harlan,--not that he was so far away or in such circumstances that he could not be present at the greenhouse. Nevertheless, the court, in instructing the jury, gave it the following charge:

"The defendant claims [the italics are ours], and he has introduced testimony to show, that, at the time it is claimed the greenhouse was entered and the damages done therein, as set out in plaintiff's petition, he, the defendant, was at another and different place from where it is claimed the acts resulting in the damage took place. The burden of establishing this defense is upon the defendant, and the evidence introduced to sustain said claim must outweigh the testimony offered by the plaintiff to show that the defendant was the person who entered the greenhouse at the time and place in question, and committed the damages as claimed by plaintiff. [The italics are ours.] It will be sufficient to establish the defendant's claim if the evidence shows that, at the time plaintiff claims the damages took place, the defendant was at another and different place from the greenhouse in question."

As we have emphasized by the first italicized word, the trial court said the defendant "claims, " etc. Where did he so claim? Certainly not in his answer; that is to say, the appellant did not plead alibi as an affirmative defense. To reiterate, the appellant did not plead that he was "at a different place so remote or distant or under such circumstances that he could not have committed the offense." This court said, in a criminal case, State v. Wagner, 207 Iowa 224, 222 N.W. 407:

"Defendant contends that the defense of alibi was not raised, and we think in this his position is correct. We think the evidence introduced by him, showing his whereabouts on the evening in question was incidental to his denial that he was the perpetrator of the offense and was not offered for the purpose of showing, and did not show, that, by reason of his being elsewhere, it was impossible for him to have taken the chickens at the time and place charged. * * * (3) The defendant may meet the State's case by evidence merely controverting the State's evidence; and incidentally thereto, his evidence may tend to show that he was not present at the time and place charged in the State's evidence, but, as explanatory and corroborative, he was elsewhere. (4) He may go further, and attempt to prove affirmatively, not merely that he was not present, but that, by reason of extraneous facts, it was impossible that he could have been present; * * * Obviously, this instruction [the one given in the Wagner case] should not be given when the defendant is seeking to do no more than controvert merely by way of negation the evidence of the State. * * * If defendant's evidence is not directed to showing such impossibility, then he is not setting up an alibi. * * * The circumstances and conditions, the facts proved, to constitute an alibi, must have been such that he could not at the time thereof have been at the place of the commission of the offense, and therefore could not have been the perpetrator."

The Wagner case, of course, dealt with criminal law. There is confronting us now a civil controversy, and the rules of pleading and practice as applied thereto and distinguished from the criminal procedure must control. Even in the criminal practice, it is permissible for a defendant to show his whereabouts without claiming...