Jennings v. Farmers Mut. Ins. Ass'n

Citation260 Iowa 279,149 N.W.2d 298
Decision Date07 March 1967
Docket NumberNo. 52447,52447
PartiesFrancis E. JENNINGS, Appellee, v. FARMERS MUTUAL INSURANCE ASSOCIATION, Appellant.
CourtUnited States State Supreme Court of Iowa

Keith A. McKinley, Osage, and Larson & Carr, Charles City, for appellant.

Alfred A. Beardmore and T. A. Beardmore, Charles City, for appellee.

LARSON, Justice.

This is an action on a contract of insurance issued by the Farmers Mutual Insurance Association to Francis E. Jennings which inter alia insured plaintiff's dairy herd from loss occurring as a result of vandalism and malicious mischief. The jury returned a verdict for plaintiff in the sum of $5,020.75 and, when defendant's motions for judgment notwithstanding the verdict and for a new trial were overruled, it appealed.

Appellant assigns as error (1) that defendant's motions for a directed verdict should have been sustained, (2) that its motion for judgment notwithstanding the verdict was erroneously overruled, and (3) that the court erred in failing to grant its motion for a new trial. Actually, the sole issue before us is whether the plaintiff sustained his burden to prove that the injury and damage suffered was the result of vandalism and malicious mischief as defined in his policy of insurance. It involves primarily a fact question of causal connection. The trial court thought a jury issue had been generated and we agree.

I. Our function in this review is not to weigh the evidence, but to decide whether there is substantial evidence from which a jury could find for the plaintiff, and in so doing we must view the evidence most favorable to the prevailing party below. Ritland v. Security State Bank, Radcliffe, 257 Iowa 21, 131 N.W.2d 464, and citations; Rule 344(f) 1, Rules of Civil Procedure.

On March 22, 1964, Mr. Jennings purchased a five-year policy of insurance from the Farmers Mutual Insurance Association of Osage, Iowa, which covered loss by fire, windstorm and extended coverage. Among its provisions was the following: 'PROVISIONS APPLICABLE ONLY TO VANDALISM AND MALICIOUS MISCHIEF: The term Vandalism and Malicious Mischief as used herein is restricted to and includes only willful or malicious physical injury to or destruction of the described property.'

In April 1965 a number of plaintiff's cows were poisoned when they licked paint out of two open five-gallon cans which had been placed upon an iron grating next to a line fence between plaintiff's pasture and his neighbor's yard. Seventeen died and others could not be milked for some time. There is no dispute as to the amount of plaintiff's damage nor as to how the cattle obtained the poison. The nub of this controversy is whether plaintiff's circumstantial evidence was sufficient to sustain a finding that the person or persons who placed the cans of paint at the fence did so willfully or maliciously, and a finding that plaintiff had carried the burden assumed by his pleadings.

II. One who pleads and relies upon the affirmative of an issue, of course, must carry the burden to prove it. Ritland v. Security State Bank, Radcliffe, supra: In re Estate of Kneebs, 246 Iowa 1053, 70 N.W.2d 539; Race v. Iowa Electric Light and Power Co., 257 Iowa 701, 134 N.W.2d 335; Rule 344(f) 5, Rules of Civil Procedure.

In paragraph 3 of his petition plaintiff alleged, 'That sometime immediately prior to the 19th day of April 1965 * * * a person or persons unknown to this plaintiff placed two 5-gallon cans of paint immediately adjacent to and nearly touching the pasture fence of this plaintiff, said pasture being where the plaintiff was pasturing his cows. That said cans of paint were placed on a register or grating and were without covers, and said paint cans were placed there by the person or persons with the willful intent to injure the plaintiff's cattle, and that such act constituted vandalism and malicious mischief as defined in the contract of insurance.'

There appears to be little or no dispute as to the contents of the cans or where they were found after the injury was discovered. It is clear the consumption of their contents by the cows caused the loss. What is not clear is when and why these cans of paint were placed so close to the fence of the pasture in which plaintiff had his cattle. Evidence as to these important if not ultimate facts was purely circumstantial. Plaintiff introduced no one who said he saw the open cans placed on an iron grate so close to the fence you could not get your hand between the cans and the lower strand of the three-strand barbed-wire fence. He produced no one who testified as to the intention of such person or persons, but relies upon proof of circumstances from which the jury could find they were so placed with an intent to injure or destroy plaintiff's cattle.

III. We have often said, in order to establish a proposition by circumstantial evidence, the evidence must be such as to make the claimant's theory reasonably probable and not merely possible, and more probable than any other theory based on the evidence, but the evidence need not exclude every other possible theory. State Farm Mutual Automobile Insurance Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449; Doane v. Farmers Cooperative Co., 250 Iowa 390, 94 N.W.2d 115, 81 A.L.R.2d 128; Soreide v. Vilas & Company, 247 Iowa 1139, 78 N.W.2d 41.

The trial court was convinced that if the jury believed these cans of paint had been opened and placed near this fence at this spot about the time or after the cattle had been turned into that pasture, it could adopt the theory that it was done with an evil intent and properly find the intent to injure was more probable than any other theory, including the one propounded by defendant that these cans were inadvertently placed there the previous fall by the neighbor.

Plaintiff's testimony was given by himself and his veterinarian. About five days after plaintiff turned his cattle into this pasture he observed several ailing cows. He called his veterinarian and, when it appeared the cows were obtaining a poison, a search for the source was made. These paint cans were discovered near the fence line about 12 feet from the corner of a tin building on the neighbor's lot, behind which there was some junk and trash. Both men said the paint cans had no lids, and none were seen in the vicinity, that the paint was good and appeared usable with little or no dirt or water in the cans, and that they were so close to the fence you could not get a hand between them and the lower strand of the three-strand barbedwire fence.

The plaintiff testified he had been over this area many times in the past months spreading manure, and the last time only a week before the cattle had been turned into this pasture, that two days before he had examined this fence, especially noting this spot because kids had in the past crawled through it there. He testified at those times he did not see any cans of paint near the fence. Plaintiff maintains this is substantial evidence of the fact that they were not in this spot when the cattle were turned into the pasture, that it permits an inference that someone thereafter placed the cans where they were found and removed their covers, and that the condition of the paint clearly shows it had not been there over the winter months.

IV. The basic distinction between direct and circumstantial evidence is that in direct evidence the witnesses testify of their own knowledge as to the ultimate facts to be proved, while circumstantial evidence relates to instances where proof is given of facts and circumstances from which the finder of fact may infer other connected facts which reasonably follow, according to the common experience of mankind. 20 Am.Jur., Evidence, § 270, p. 258. The jury here was correctly told, 'Circumstantial evidence is that which tends to show an alleged fact or facts, in issue, by proof of collateral facts from which it may be reasonably and logically deduced that the alleged ultimate fact exists which is thus sought to be established.'

Appellee contends he established by sufficient substantial evidence the following collateral facts: that the cans of paint with covers removed were placed so close to the fence in an area where plaintiff's cattle usually gathered that the person or persons must have known the cattle would get into it; that the cans were placed on a...

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    ...The burden of proof also properly rests with Elma under Iowa law as the party making the claim. See also Jennings v. Farmers Mut. Ins. Ass'n , 260 Iowa 279, 149 N.W.2d 298, 300 (1967) ("One who pleads and relies upon the affirmative of an issue, of course, must carry the burden to prove it.......
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