Opinion
No. 6952.
February 5, 1951.
APPEAL FROM THE CIRCUIT COURT, CARTER COUNTY, GORDON P. DORRIS, J.
Friend B. Greene, Eminence, Carl P. Turley, Van Buren, for appellant.
Riddle Baker, Veryl L. Riddle, Charles H. Baker, Malden, for respondents.
This is an action for damages for the conversion of certain cattle. It was tried to a jury, resulting in a verdict for plaintiffs and defendant has appealed.
It is alleged in the petition that plaintiff, John Hayes, was the owner of one heifer weighing about 500 pounds, marked by his brand and valued at $100; that plaintiff Polen was the owner of one cow weighing 890 pounds, five heifers weighing a total of approximately 2,260 pounds, marked by his brand and valued at $850. It is then alleged that defendant "did knowingly, wantonly, maliciously and unlawfully take and convert said cattle belonging to" plaintiffs; that demand had been made for the cattle and that defendant had refused to return them to the owners. Hayes prayed judgment for damages, $200 actual and $1,000 punitive, and plaintiff Polen asked for $850 actual and $5,000 punitive. The answer denied the conversion.
Plaintiff Hayes testified that on the 3rd day of August, 1948, he owned a heifer which was a white face and guernsey. The white face being very noticeable and the heifer weighed about 500 pounds. On the first day of August he had taken this heifer over to a neighbor's by the name of Harris. That was the last time he ever saw it. On cross examination, she was described as "very pale red with a touch of guernsey." It was marked with a crop and over-bit in each ear.
Plaintiff Polen testified that during the first week of August 1948, he missed five heifers and one cow. He hadn't seen the cow for some time but he had seen the five heifers on August 4th, when they had come up to his house to lick salt. He started searching for them on Friday night August 6. He never found them and never saw them any more. The cow was a milk cow and would have been fresh in September or October. Harris had a cow "practically the same color." The heifers would weigh between 400 and 500 pounds each. They were mixed in color, one was a blue roan and another was a "little guernsey that had spike horns" three or four inches long. "Q. Did she have any white on her? A. Yes, sir, brindle." Another was a black heifer with a white streak on her breast marked with an "under bit and swallow fork in right ear." In October Mr. Polen went to the packing plant near St. Louis to investigate and see if he could locate the hides of his cattle but was unable to do so. All of these cattle were running on the open range. They were each marked or had identification tags in their ears.
George Harris testified that about the first week in August, 1948, plaintiff Hayes brought a young heifer over to his house. He was familiar with Mr. Polen's herd of cattle, one cow that was missing "was a red cow with brindle on her" and would weigh 800 or 900 pounds. The last time witness saw this cow was on election day the 3rd of August. On that day, he also saw the heifers and a cow and a bull belonging to Hollis Brame, all running with his cattle. The cow and bull were never seen again by him. He was familiar with the heifer with short horns described by Mr. Polen, it was a dark heifer with white spots, "mixed with guernsey or something" and had horns about three or four inches long.
Otis Sanders testified that on the night of August 4th, he and his family were driving in the vicinity of the road between Ellington and the main highway about 10 or 10:30 o'clock; he was following a truck bed. His car overtook the truck in about one-fourth or one-half mile and his wife notified the driver of the condition of the cow's leg and the truck stopped. In the truck was defendant and a man by the name of Emmitt Gambling. Witness got out and went back to the truck with a flashlight to help get the cow up. He described the brute as "looked to me like" a brindle heifer about two years old with a white leg and "seemed like she did have spike horns," one and one-half or two inches long. He was then asked if they were two inches long and he said, "Yes sir." He estimated it would have weighed about 500 pounds. She was lying in the back of the truck. He did not observe the heifer close enough to identify her the next day. He asked how many cattle were in the truck and was told that there were nine. He then asked where they were going with them and he was told they were going to Ellington.
Mr. Donald Howard testified that he was in the stock business at Ellington and conducted an auction ring. On Thursday morning the 5th day of August, the defendant brought some cattle in and put them in his stock pens. He tried to get the defendant to auction them off there but defendant refused, saying he wanted to sell them in St. Louis. He hired witness to have them taken to St. Louis and he accompanied the driver on the truck. He told the witness his uncle owned two of the cattle, that they had some trouble with the truck bed and that was the reason they had stopped at Ellington. The witness testified that he was in the trucking business and had hauled lots of hogs and cattle for the defendant before this time. Defendant generally brought them to the barn. The pen in which the cattle had been placed was open to the public and anyone could come along and see them. People from all over that section of the country bring stock there. The stock pens were open to the inspection of several hundred people.
Mr. Morris Adams, who lived in St. Louis, and worked for the St. Louis Independent Packing Company, identified a check dated August 6, payable to defendant for $946.37. He also identified a record of the sale of the cattle (called an account of sales) for which the check had been given. This record was dated 8/6/48 and was in part as follows:
"No. Head Weight Dock Kind Marks Price Amount --------------------------------------------------------------------------- 1 890 Cow 1900 169.10 1 870 Cow, Holstein 1700 147.90 1 490 Black Hfr 2150 105.35 5 2270 Hfrs 1900 431.30
* * * * *
No. Head Weight Kind Marks Price Amount --------------------------------------------------------------------------- 1 590 Bull 2000 118.00"
Mr. George Harris was recalled and gave it as his opinion that the heifer that Mr. Hayes lost was worth about $55 or $60, "she was terribly thin." He further stated that anyone who would want the heifer for breeding purposes would probably pay $75 or $80. In his opinion, the five heifers of Mr. Polen were worth a little better than $100 apiece. The cow was worth approximately $200. This was all of plaintiff's evidence.
Request for a directed verdict was asked by defendant and refused.
The defendant's evidence was that he did haul nine head of cattle to Ellington and had them hauled from there to St. Louis, that he received the check and the account of sales introduced in evidence and that he did put the stock in the pens at Ellington. He testified that one cow and the bull belonged to his uncle, Hollis Brame. He stated that on the 4th day of August, 1948, he and one Claud Birch had gone to the home of Mr. Gambling to employ him to haul his cattle to St. Louis for him. He had previously sold Mr. Gambling a truck, which had not been completely paid for and Mr. Gambling had promised to do any trucking that Mr. O'Dell wanted done. Gambling agreed to haul the cattle to St. Louis. They loaded the cattle that night at the defendant's home and started to St. Louis with them. Among the cattle was one that had been sold to defendant by Gambling and which Gambling recognized. While they were proceeding toward Ellington with the cattle about 10:30 that night, they were overtaken by Otis Sanders, who called their attention to a cow's foot sticking through the floor of the truck bed. They tried to fix the truck but could not do so and when they arrived in Ellington, they decided to unload at the stock pens and employ Donald Howard to haul them to St. Louis. This they did and there sold the cattle, receiving the accounts of sale and the check introduced in evidence. He endorsed the check and cashed it at the Carter County Bank. The seven head of cattle belonged to him and his father and they had agreed a few days previously to sell them and take them to St. Louis. At the time the cattle were actually taken, his father and mother were visiting an uncle in St. Louis but upon his father's return and after defendant has cashed the check, he gave his uncle's part of the money to his father. The father took the money and finally sent it to the uncle. At the time of the sale of the seven head, defendant and his father had 35 or 40 head of cattle on their farm. The bull and the cow belonging to his uncle were sold at the uncle's suggestion and with his consent.
Claud Birch, a son-in-law of Hollis Brame, lived on his father-in-law's place and knew that the defendant was intending to take to market the bull and cow belonging to Brame.
Defendant was corroborated by his father, mother, wife and Gambling.
Claud Birch was a witness for plaintiffs on rebuttal and he testified that he was in charge of Hollis Brame's cattle on the farm and that he authorized defendant to market the cow and bull. Hollis wanted the cow shipped because "she wouldn't breed." George Harris was re-called by plaintiffs to impeach Birch and testified that shortly after the cattle were missed, Birch had made a statement that he never gave defendant permission to ship the cow and bull belonging to Brame.
At the close of all the evidence a motion for a directed verdict was filed by defendant and was overruled.
In considering whether there was sufficient evidence to support the verdict and judgment, this court must consider the whole evidence and give the plaintiff the benefit of all facts and circumstances favorable to, or tending to support his theory of the case, with every reasonable inference that may be drawn therefrom, while the evidence of defendants, except such as corroborates plaintiff's evidence must be excluded from consideration. Neely v. Freeze, 240 Mo.App. 1001, 225 S.W.2d 144; Silvey v. Herndon, Mo.App., 234 S.W.2d 335.
Bearing this rule in mind, there can be no question but what the plaintiffs lost the cattle described in their petition but whether they were stolen or strayed away does not appear. They were on the open range and within a week after having been seen by the plaintiffs and another witness, they were gone. During that week and on the night of the 4th of August, defendant hauled away a load of cattle. Witness Sanders testified that one of the cattle in defendant's truck appeared to be a brindle heifer about two years old, with a white leg and spike horns two inches long. He does not pretend to say it belonged to one of the plaintiffs. He estimated its weight at 500 pounds. This is the only witness for plaintiffs that gave a description of any of the cattle that defendant hauled away. They were put in the stock pens at Ellington, subject to the inspection of hundreds of people. They were sold at the independent Live Stock Company in St. Louis and an invoice prepared but nowhere do we find a description that identifies them as the property of the plaintiffs. Certainly, there is no description of plaintiff Hayes' heifer. While plaintiff Polen lost six cattle, there is no description at all of five of them as having been in the hands of defendant and the one that witness Sanders described is not sufficiently definite to identify it as one belonging to plaintiff Polen.
The evidence shows that all, or nearly all, of the cattle alleged to have been converted by defendant were either marked or had identification tags in their ears, but there is no evidence that any of the cattle in the possession of defendant was so marked. The burden was upon the plaintiffs to prove by a preponderance of the evidence that the identical cattle in defendant's possession were the cattle of the plaintiffs. Satterfield v. Knippel, Tex.Civ.App., 169 S.W.2d 795; Spicer Land Co. v. Hirman, 187 Minn. 142, 244 N.W. 553.
It is true this may be proved by circumstantial evidence but a verdict cannot stand that is based upon suspicion, conjecture, guesswork, surmise or mere possibility, only. There must be substantial evidence and in this case, it is lacking. 32 C.J.S., Evidence, § 1042, page 1116 et seq.; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31. Baldwin v. Desgranges, 355 Mo. 959, 199 S.W.2d 353.
The evidence being insufficient, the judgment of the trial court should be reversed. It is so ordered.
BLAIR and McDOWELL, JJ., concur.