Gregory v. Sorenson

• Citation: 242 N.W. 91,214 Iowa 1374
• Decision Date: 05 April 1932
• Docket Number: No. 40973.,40973.
• Parties: GREGORY v. SORENSON.
• Court: Iowa Supreme Court

214 Iowa 1374

242 N.W. 91

GREGORY

v.SORENSON.

No. 40973.

Supreme Court of Iowa.

April 5, 1932.

Appeal from District Court, Shelby County; J. S. Dewell, Judge.

In this action, the plaintiff sought to recover from the defendant both compensatory and exemplary damages for the destruction of growing plants, flowers, and bulbs in a greenhouse. The jury allowed $1,135 as actual damages, and $1,365 as exemplary damages. Judgment was entered accordingly, and the defendant appeals.

Affirmed.Smith & More and Bennett Cullison, all of Harlan, for appellant.

E. M. Miller, of Harlan, for appellee.

KINDIG, J.

The plaintiff-appellee, Roy Gregory, conducted a florist business in Harlan. He raised flowers, plants, and bulbs in, and sold them from, a greenhouse. During the same period of time the defendant-appellant, in competition with the appellee, was engaged in the retail sale of flowers in Harlan.

On April 8, 1924, some one wrongfully entered appellee's greenhouse and destroyed flowers, plants, and bulbs. Soon thereafter the appellant was accused of having entered the greenhouse and maliciously destroying appellee's property. Accordingly, he was arrestedand later indicted for the malicious destruction of the greenhouse property, or some similar offense in connection therewith. In the first trial under the indictment, the jury disagreed, and on the second trial the next jury returned a verdict of not guilty. Then, on November 21, 1926, this action was commenced by appellee to obtain compensatory and exemplary damages from the appellant for his alleged wrongful destruction of the aforesaid flowers, bulbs, and plants. A trial was had in the civil case. Appellee obtained a judgment against appellant in that case for the sum of $4,905, allocated as follows: $1,405 compensatory and $3,500 punitive damages. An appeal was taken from that judgment by the appellant, which resulted in a reversal because of an erroneous instruction on an alleged “alibi.” See Gregory v. Sorensen, 208 Iowa, 174, 225 N. W. 342.

Following that reversal, the case was again tried in the district court, which resulted in a verdict of $2,500 in appellee's favor. That verdict is allocated as follows: $1,135 compensatory and $1,365 exemplary damages. Again the appellant appeals. The grounds upon which a reversal is asked are set forth under the following discussion.

[1] I. At the outset, it is claimed by appellant that the evidence is not sufficient to identify him as the one who destroyed the flowers, bulbs, and plants. A motion for a directed verdict on this theory was timely and properly made by the appellant. This motion, however, was overruled by the district court. Hence appellant asks for a reversal on this ground.

All the evidence relied upon by the appellee to identify the appellant as the one who destroyed the property is circumstantial as distinguished from direct. Nevertheless, we are constrained to hold that the evidence is sufficient to present a jury question upon this proposition, and therefore the appellant's motion for a directed verdict was properly overruled. Careful consideration has been given to appellant's argument at this juncture and the record has been fully read with reference thereto. When appellant's conduct and statements are considered before the property was destroyed, and immediately thereafter, together with the other facts and circumstances in the case, there is presented ample evidence upon which the jury might base its verdict. Included in our consideration in that respect is the location of a Ford automobile with reference to the greenhouse, the fact that the appellant owned a Ford car of the type under consideration, the footprints from or near the Ford car to the greenhouse and back again, the movement of the Ford automobile late at night without lights into appellant's garage, and many other facts and circumstances.

While submitting this question to the jury, the district court carefully instructed them upon the use of circumstantial evidence. There is no basis in the instructions for the criticism directed at them in the appellant's argument. “Verdicts may not be based on mere surmise or conjecture. The circumstantial evidence must be something more than consistent with appellant's theory. * * * It must exclude every other reasonable hypothesis.” Field v. Southern Surety Co., of New York, 211 Iowa, 1239, 235 N. W. 571, 575. Such was the theory presented to the jury by the district court in the case at bar. Nowhere does appellant suggest any other theory consistent with the circumstantial evidence presented here. As a matter of fact, the circumstantial evidence offered to the jury in this case excludes any theory except that which points out the appellant as the destroyer of appellee's property.

[2] Under the holdings of this court, circumstantial evidence, in order to be sufficient, must be of such a nature and the facts included therein “so related to each other that” the theory of recovery “is the only conclusion that can fairly or reasonably be drawn from” such facts and circumstances. “It is not sufficient that” the circumstantial evidence “may be consistent merely with” the theory of recovery “for that may be true, and yet” the facts and circumstances “may have no tendency to prove the theory. This is tantamount to saying the evidence must be such as in the nature of the case will convince an ordinarily reasonable person” that the appellant destroyed the appellee's property in the case at bar. “If another” theory “inconsistent with the cause alleged is equally probable, the former cannot be said to have been proven.” Johnson v. Corn Products Refining Company, 157 Iowa, 420, 138 N. W. 516, 519. On the same proposition, see, also, Brownfield v. Chicago, R. I. & P. Ry. Co., 107 Iowa, 254, 77 N. W. 1038;Gibson v. Iowa Cent. R. Co., 136 Iowa, 415, 113 N. W. 927;Bryce, etc., v. Chicago, Milwaukee & St. Paul Railway Co., 129 Iowa, 342, 105 N. W. 497;Hemminger v. City of Des Moines, 199 Iowa, 1302, 203 N. W. 822;Neal v. Chicago, R. I. & P. Ry. Co., 129 Iowa, 5, 105 N. W. 197, 2 L. R. A. (N. S.) 905;Asbach v. Chicago, B. & Q. Ry. Co., 74 Iowa, 248, 37 N. W. 182;Tibbitts v. Mason City & Fort Dodge Railway Co., 138 Iowa, 178, 115 N. W. 1021.

Consequently, the circumstantial evidence in this record meets all the tests required by the law, and the district court properly submitted that issue to the jury.

[3] II. Regardless of the foregoing, it is said by the appellant that the judgment of the district court must be reversed because that tribunal wrongfully admitted the testimony of the witness Mrs. Beems concerning conversations with a Mrs. Case and the appellant.The part of this conversation which was with Mrs. Case alone is said by the appellant to be hearsay and inadmissible.

This evidence of Mrs. Beems consisted of her relating statements and actions of Mrs. Case to induce the former not to testify against appellant, but return from Harlan, Iowa, to Denver, Colo., where the witness lived. During her testimony, Mrs. Beems related that the appellant and Mrs. Case offered her money if she would not testify. It is said by the witness that the money offered by Mrs. Case and the appellant was supposedly to pay the former's railroad fare from Harlan to Denver. Some of the conversation thus related by the witness took place in the appellant's absence. Therefore, it is said that such portion of the testimony amounted to mere hearsay. Obviously, however, this conclusion is not supported in the record. Mrs. Case induced Mrs. Beems to leave the house and go to the street where the appellant was waiting with his automobile. When Mrs. Beems arrived at the automobile, the appellant spoke to her, as did Mrs. Case, about going back to Denver. At the same time, the appellant offered to pay Mrs. Beems' railroad fare, and gave Mrs. Case money with which to pay her. Clearly, the conversations between the witness and Mrs. Case were so closely related with the actual transaction with appellant in the automobile that the jury could conclude, if they were so inclined, that Mrs. Case was the appellant's agent in the illegal transaction.

Moreover, assuming that some of the conversation between the witness and Mrs. Case took place immediately before the automobile incident, nevertheless there is sufficient evidence in the record upon which the jury could find that the appellant, after the women came to the automobile, fully ratified the previous statements made by, and actions of, Mrs. Case. See Long v. Osborn, 91 Iowa, 160, 59 N. W. 14;Eadie, Guilford & Co. v. Ashbaugh, 44 Iowa, 519.

[4] There was evidence in the record supporting the fact that Mrs. Case and the appellant had entered into a conspiracy to illegally induce the witness Mrs. Beems not to testify against appellant in this case. These statements and actions of Mrs. Case occurred: First, during the furtherance of the unlawful plan; and, second, during the continuance thereof. Consequently, under all the circumstances, the evidence was properly admissible. See State v. Archibald, 204 Iowa, 409, 215 N. W. 258.

The district court carefully limited the use to be made of this testimony by the jury. It was said in the instructions that the testimony should not be considered unless Mrs. Case was the agent of the appellant or unless appellant ratified her actions and statements after they were committed or made. Under the limitations named in these instructions, the evidence was clearly admissible.

III. But even though that is true, appellant further contends that there should be a reversal because of the district court's instruction to the jury regarding the use of the aforesaid evidence.

Two complaints are here made. First, the complaint is that the evidence was not sufficient to indicate that the appellant attempted to bribe the witness Mrs. Beems. That issue was presented to the jury in the court's instructions. Hence the appellant complains.

Without here setting forth...