Section 5.3 Circumstantial Evidence

• Library: Evidence 2017

III. (§5.3) Circumstantial Evidence

General Rule: A case may be proved by circumstantial evidence alone. Circumstantial evidence may be more certain, satisfying, and persuasive than direct evidence.

The “‘[f]acts necessary to sustain a recovery may be proved by circumstantial evidence.’” Fabricor, Inc. v. E.I. DuPont de Nemours & Co., 24 S.W.3d 82, 94 (Mo. App. W.D. 2000) (quoting Steward v. Goetz, 945 S.W.2d 520, 528 (Mo. App. E.D. 1997); ThomasPhelps Found. v. Custom Ins. Co., 977 S.W.2d 33, 37 (Mo. App. E.D. 1998)).

Fabricor was an action by a countertop fabricator against the manufacturer and distributor of a surface material for tortious interference with a business expectancy. Fabricor showed that DuPont attempted to induce the breach but was also required to show that DuPont’s conduct caused the breach. Fabricor had no direct evidence to prove this element of the case, but it did introduce much circumstantial evidence, including:

· its good performance;

· its selection as a subcontractor on other projects;

· its demonstrated ability to make production deadlines; and

· the absence of any quality issues concerning Fabricor’s work.

This was all circumstantial evidence tending to show that Fabricor’s loss of business expectancy was related to DuPont’s misrepresentations regarding Fabricor’s financial ability to perform rather than some unrelated reason.

“[A] plaintiff may prove his case by circumstantial evidence where . . . ‘the facts proved and the conclusions to be drawn are of such a nature and are so related to each other that the conclusions may be fairly inferred.’” Union Elec. Co. v. A.P. Read Homes, LLC, 485 S.W.3d 773, 777 (Mo. App. W.D. 2016) (quoting Doe Run Res. Corp. v. Certain Underwriters at Lloyd’s London, 400 S.W.3d 463, 470 (Mo. App. E.D. 2013)).

The fact that only circumstantial evidence exists on a material issue will not bar recovery. Birdsong v. Christians, 6 S.W.3d 218 (Mo. App. S.D. 1999) (citing, with approval, Martin v. McNeill, 957 S.W.2d 360, 363 (Mo. App. W.D. 1997)).

“[P]roof of essential facts may be accomplished by circumstantial evidence so long as the desired inference is established ‘with such certainty as to cause it to be the more probable of the conclusions to be drawn.’” Landis v. Sumner Mfg. Co., 750 S.W.2d 466, 469 (Mo. App. W.D. 1988) (quoting Vaughan v. Taft Broad. Co., 708 S.W.2d 656, 661 (Mo. banc 1986)).

Further, “[t]he facts proved must be so connected and related to each other that the conclusion may be fairly inferred.” Landis, 750 S.W.2d at 469 (quoting Morris v. Israel Bros., Inc., 510 S.W.2d 437, 442 (Mo. 1974)).

In an action arising out of a motor vehicle collision between a dump truck and a pick-up truck in which both drivers were killed, the Court ruled that the jury was not bound by the testimony of the sole surviving eyewitness; the jury could, instead, accept circumstantial evidence as to which side of the road the collision occurred on. The Court also held that “[i]t is well established that a case may be proved by circumstantial...