On February 3, 1933, appellee conducted a grocery store and meat market in the city of Fort Dodge. On August 26, 1932, he took out a policy in the Continental Insurance Company for $3,000 covering his stock of merchandise and fixtures, and on October 3, following, he took out an additional policy in the Northwestern Company for $1,000 on the same property. About 2 a.m., February 3, 1933, a fire occurred in the building occupied by appellee, resulting in damages to appellee's stock and fixtures, for which he brought this action.
Appellants, as a separate defense, allege that the damage to appellee's property resulted from a fire caused or procured by appellee.
All of appellee's employees left the store building about 6 or 6:30 p.m. the evening before the fire. Appellee, who was the last to leave the store that evening, left about 7 p.m. There were only two entrances to the store — one in front and one in the rear. Both entrances were securely locked by appellee before he left, and he had all keys to the building in his possession at that time. Appellee was a single man, and on leaving the store he went to his boarding house where he visited until about 10 or 11 p.m., when they all went upstairs. *Page 808
The fire was discovered between 2 and 3 a.m. by a policeman who immediately notified the fire department, which also notified appellee. Upon the arrival of the firemen, they found both the front and rear doors securely locked, and forced an entrance into both doors. The store occupied a large room partially divided by a large refrigerator located between the front and rear portion of the room. The only entrance to the basement was through a trapdoor near the rear wall of the storeroom. A furnace was located in the basement. After entering the building the firemen found three separate and distinct fires in the building: One in the front part of the room between the refrigerator and the counter; the second in the rear part of the room, back of the refrigerator; the third in the basement near some empty wooden crates and boxes not far from the furnace. There was evidence introduced tending to show that there was no connection between the fire in the basement and those on the main floor; neither was there any evidence that inflammable material such as gasoline or kerosene had been placed or scattered about the building. The evidence also showed that the electric wiring in the building was in good condition. There was no evidence of any breaking and entering or burglary. The deputy state fire marshal, who was called to investigate this fire shortly after it occurred, testified that in his opinion the fire was of incendiary origin.
The value of the stock of merchandise and fixtures in the building at the time of the fire was between $3,000 and $4,000. The amount of the aggregate insurance was $4,000. There was no evidence tending to show that appellee was seen anywhere near his store after leaving it the night before. He testified that he arrived at his boarding house between 7 and 8 that night, and visited until about 10 or 11 p.m. with Mr. and Mrs. Felciai, with whom he roomed and boarded, but did not testify that he retired or remained there until the next morning. Mrs. Felciai testified that appellee visited with them until about 10 p.m., when they all went upstairs.
The evidence also shows that appellee, at the time of the fire, had a fairly good business and that it was increasing. It also shows that he was in good financial circumstances; that he had money loaned out, and was worth several thousand dollars. He never resumed the business after the fire. He later secured a beer permit and thereafter conducted a beer parlor. *Page 809
At the close of the evidence a motion for a directed verdict in favor of appellee was sustained by the court, and judgment entered thereon. From this judgment appellants appeal. Appellants contend that the court erred in sustaining the motion because there was circumstantial evidence tending to show the fire was of incendiary character, and that appellee caused or procured the same.
It is conceded that on a defense of this kind the burden of proof rests upon the appellant to establish, by a preponderance of the evidence, (1) that the fire was of incendiary origin, and (2) that the appellee was connected with the cause thereof.
It is contended that the rule of law prevailing in criminal actions, to establish the guilt of the defendant by circumstantial evidence, is different from that in civil actions. In order to establish a defendant's guilt by circumstantial evidence in criminal actions, it is necessary that the circumstances establish guilt beyond all reasonable doubt, and that they exclude all other reasonable theories, while in a civil action it is not necessary to establish a cause of action or a defense beyond all reasonable doubt, and that if the circumstances relied upon are equally as consistent with one theory as another, then the cause or defense has not been established.
It is, nevertheless, the rule in civil actions that in order to establish a cause of action or a defense by circumstantial evidence, it is necessary to show that the facts relied upon must be of such a nature, and be so related to each other that only one conclusion can fairly and reasonably be drawn therefrom. Asbach v. C., B. Q. Ry. Co., 74 Iowa 248, 37 N.W. 182. This rule has been followed by a long line of cases and it is therefore the settled rule in civil actions that in order to establish a cause of action or defense by circumstantial evidence, such evidence must exclude all other reasonable theories. Neal v. C., R.I. P. Ry. Co., 129 Iowa 5, 105 N.W. 197, 2 L.R.A. (N.S.) 905; Tibbitts v. Mason City Fort Dodge Ry. Co., 138 Iowa 178, 115 N.W. 1021; Kearney v. Town of De Witt,199 Iowa 530, 202 N.W. 253; Ferber v. Gr. No. Ry. Co., 205 Iowa 291, 217 N.W. 880; Reimer v. Musel, 217 Iowa 377, 251 N.W. 863. If, therefore, the circumstances relied upon to establish certain ultimate facts are equally as consistent with one theory as another, then the party having the burden of proof must fail. If, however, the circumstantial evidence relied upon fairly and reasonably points to but one conclusion, then that conclusion must prevail. In other words, as applied to the *Page 810 facts in this case, if the circumstances relied upon to connect appellee with the cause of this fire are such that no other reasonable conclusion can be reached therefrom, except that appellee caused or procured the fire in question to be started, then that question should have been submitted to the jury. Duncan v. Fort Dodge Gas Elec. Co., 193 Iowa 1127, 188 N.W. 865; Silverstone v. London Assur. Corporation, 176 Mich. 525, 142 N.W. 776; Smith v. California Ins. Co., 85 Me. 348, 27 A. 191.
The defense that appellee caused an incendiary fire need not be proved beyond a reasonable doubt. Silverstone v. London Assur. Corporation, 176 Mich. 525, 142 N.W. 776; Carlwitz v. Germania Fire Ins. Co., Fed. Case No. 2415-a; Smith v. California Insurance Company, 85 Me. 348, 27 A. 191; Sibley v. St. Paul Fire Marine Insurance Company, Fed. Case No. 12830. Such is also our conclusion, and the rule is not seriously disputed by appellants.
It is also conceded that if there is any circumstantial evidence tending to establish (1) that the fire was of incendiary character, and (2) that it was caused or procured by appellee, there should have been a submission to the jury.
I. It must be conceded that there was some evidence offered tending to establish the incendiary character of the fire. This was shown by the evidence tending to show three separate and distinct fires, when the firemen arrived at the scene of the fire. This was evidence from which a jury could find that the fire was of incendiary origin. In addition to such testimony there was also the evidence of the deputy state fire marshal that, in his opinion, the fire was of incendiary origin. It must therefore be concluded that there was sufficient evidence upon the incendiary character of the fire to go to the jury. If this question was submitted to the jury, it might or might not find that it was of such a character, but, for the purposes of a ruling on a motion for a directed verdict, appellants are entitled to have the evidence viewed in the most favorable light for them. As there was such evidence it must, for the purposes of the motion, be assumed that the fire was of an incendiary character. Although the evidence of it might be considered weak, nevertheless if it in any manner tends to establish the incendiary character of the fire, that question, in a law action, must be determined by the jury. *Page 811
II. Appellee contends, however, that it is not sufficient to show the incendiary origin of the fire, but that appellee's connection with it must also be established by a preponderance of the evidence. This is also conceded by appellants; but they contend that, if there is any circumstantial evidence tending to connect appellee with the cause of the fire, his connection with it, if any, should be submitted to the jury. They contend there is sufficient circumstantial evidence on this question to make it one for the jury.
One of the circumstances urged is that within a few months after taking out a $3,000 policy, he took out an additional policy of $1,000; that his property was worth less than $4,000 and was overinsured; that a financial benefit to the appellee might result from a fire, and for that reason he had a motive in starting it. Appellee placed a value of $3,600 upon the property, while the total insurance thereon was $4,000. The fact among other facts, showing that property is overinsured, has been held, in many cases, to be a circumstance tending to connect the owner with a fire. Commonwealth v. Cooper, 264 Mass. 368, 162 N.E. 729; Commonwealth v. Bader, 285 Mass. 574, 189 N.E. 590; Smith v. California Ins. Co., 85 Me. 348, 27 A. 191; Bruff v. Northwestern Mut. Fire Assn., 59 Wash. 125, 109 P. 280, Ann. Cas. 1912A, 1138. But overinsurance, in and of itself, would not be sufficient to warrant a finding that the insured caused the fire.
Another strong circumstance urged as a reason for connecting appellee with this fire was the fact that he alone had all the keys to the premises. Although Mrs. Felciai testified that he was visiting with them until 10 o'clock when they all retired, she does not attempt to say that he did not leave the house between that time and 3 in the morning. Mr. Felciai does not remember what happened that night or when he (Felciai) came home. All he remembers is that he received a telephone call early the next morning about the fire. It is significant that appellee did not testify that he remained in his room the balance of the night and until he was notified of the fire. He could easily have testified to this, but failed to do so. It is also significant he does not say he did not cause the fire. All he says is that he "did not know how the fire started", but he does not specifically deny that he caused or procured it to be started. Both entrances were securely locked before he left the night before, *Page 812 and no one else had keys to the premises. Such a circumstance, among others, was held of sufficient probative value to submit the question to the jury. Twin City Fire Insurance Company v. Lonas, 255 Ky. 717, 75 S.W.2d 348; Picoraro v. Ins. Co. of State of Pa., 175 La. 416, 143 So. 360; Richardson v. Travelers Fire Ins. Co. (Mass.) 193 N.E. 40.
Another circumstance urged as pointing to appellee as causing the fire is the fact that he never resumed the business, but thereafter engaged in the business of conducting a beer parlor.
Another circumstance urged as pointing to the same direction is that there was no evidence of any breaking and entering, or of burglary, and that the party who entered the building must have had a key to admit him thereto. The evidence shows that he alone had all the keys to the building and was the only person who could gain admission thereto without breaking and entering. Appellee testified he had no enemies who might want to burn him out. While, of course, there is a possibility that a burglar might have opened one of the doors by means of a skeleton key or burglar tools, there is no evidence from which such a possibility might be drawn. We are here dealing with probabilities, and, while there is no direct evidence tending to connect appellee with the fire, the circumstances shown, when considered in connection with the incendiary character of the fire, are sufficient to take the question of his connection with it to the jury. As supporting this view see Bruff v. Northwestern Fire Assn., 59 Wash. 125, 109 P. 280, Ann. Cas. 1912A, 1138; Fire Association of Phil. v. Oneida County Macaroni Co. (C.C.A.) 294 F. 633; Copen v. Nat. Ben Franklin Fire Ins. Co., 107 W. Va. 608,149 S.E. 830; Hoyt v. Ins. Co. of No. America, 103 Me. 299, 69 A. 110; Exnicios v. Sun Ins. Office, 156 La. 975, 101 So. 383; Silverstone v. London Assur. Corporation, 176 Mich. 525, 142 N.W. 776; Clover Crest Farm, Inc., v. New York Cent. Mut. Fire Ins. Co., 189 A.D. 548, 179 N.Y.S. 352; Meily Co. v. London Lan. Fire Ins. Co. (C.C.A.) 148 F. 683; Sawyers v. Commonwealth,88 Va. 356, 13 S.E. 708; State of Iowa v. Millmeier, 102 Iowa 692, 72 N.W. 275; Weiner v. Ætna Ins. Co., 127 Neb. 572, 256 N.W. 71.
We are constrained to hold that the circumstances shown in this case are sufficient, by reasonable inference, to make the question of appellee's connection with the fire one for the jury. For *Page 813 the reasons hereinabove indicated, the judgment of the lower court is hereby reversed. — Reversed.
ANDERSON, C.J., and ALBERT, POWERS, PARSONS, DONEGAN, and HAMILTON, JJ., concur.
MITCHELL, J., dissents.