This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




Ronald W. Meyer,

as Trustee for the next of kin of Daniel W. Meyer,



Robert Orient, et al.,


Darrin Cassidy,


Filed April 22, 1997


Kalitowski, Judge

Mower County District Court

File No. C295872

John S. Beckmann, Steven J. Hovey, Hoversten, Johnson, Beckmann, Wellmann & Hovey P.L.L.P., 807 West Oakland Avenue, Austin, MN 55912 (for Respondent)

Bryan J. Baudler, Baudler, Baudler, Maus & Blahnik, 108 North Main Street, Austin, MN 55912 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Mulally, Judge.[*]



Appellant Darrin Cassidy challenges the districts court's conclusion that Cassidy, along with four other individuals, are liable for the death of Daniel Meyer. Cassidy argues: (1) the court made a finding of fact not supported by the record; and (2) the court erred in concluding Cassidy was engaged in a civil conspiracy with the other individuals. We affirm


Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. The findings of a referee, to the extent adopted by the court, shall be considered as the findings of the court. Id. On questions of law, this court reviews a lower court's determinations de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).


A finding of fact is clearly erroneous if it is "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Wangen v. Swanson Meats, Inc., 541 N.W.2d 1, 3 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996).

Cassidy argues the district court erred in finding he had stated, "If Mark (Brady) hadn't punched that kid (Brandon Moore) I would have done it." Although Cassidy denied making such a statement at trial, there is evidence in the record to support the court's finding. During his deposition, Mark Brady stated:

Darrin Cassidy got out of the car and said well if Mark wouldn't have hit him uh I believe Brandon that he would have hit him or something like that, just bragging about it you know, you know none of us were proud about you know what happened but he was out there bragging at the party so.

This evidence, along with the circumstances surrounding the incident, requires us to conclude the district court's finding is not clearly erroneous.


Verdicts are viewed in the light most favorable to the verdict and will only be set aside if manifestly contrary to the evidence. Ouellette by Ouellette v. Subak, 391 N.W.2d 810, 817 (Minn. 1986) (citation omitted). "A verdict will not be set aside unless the evidence against it is practically conclusive." Id. (citation omitted).

The district court found Cassidy jointly liable for the death of Daniel Meyer because Cassidy was involved in a conspiracy that realized its purpose of assaulting and battering Meyer, which resulted in Meyer's death. Cassidy argues Meyer's death was not the result of his tortious conduct. We disagree.

In Dahlin v. Fraser, 206 Minn. 476, 288 N.W. 851 (1939), the supreme court stated:

An assault is an unlawful threat to do bodily harm to another with present ability to carry the threat into effect. Mere words or threats alone do not constitute assault. When the words or threats are accompanied by a threat of physical violence under conditions indicating present ability to carry out the threat, they cease to be mere words or threats. The display of force must be such as to cause plaintiff reasonable apprehension of immediate bodily harm. Evidence that the party charged exhibited anger, used violent language and threatened to strike another while in his presence under circumstances indicating a present ability to carry out the threats is sufficient to show an assault.

Id. at 478, 288 N.W. at 852. A battery is a completed assault. See Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980) (battery is intentional, unpermitted, offensive contact with another).

Here, the evidence establishes that the two individuals who confronted Daniel Meyer are liable for assault and battery. They each forcibly grabbed Meyer and yelled at him. The individuals' conduct caused extreme fear in Meyer. In addition, one of the individuals pushed Meyer down. According to expert testimony, these actions caused Meyer to have an epileptic seizure that, due to the vomiting commonly associated with seizures, ultimately caused Meyer to die of asphyxiation. While neither individual intended to cause the death of Meyer, they are liable for his death because their assault and battery of him resulted in his death. See Johnson v. Sampson, 167 Minn. 203, 205-06, 208 N.W. 814, 815 (1926) (tortfeasor liable for proximate cause of their acts).

Because the record does not demonstrate that Cassidy directly assaulted or battered Meyer, a conspiracy must exist to hold Cassidy liable for Meyer's death. "A conspiracy is a combination of persons to accomplish an unlawful purpose or a lawful purpose by unlawful means." Harding v. Ohio Cas. Ins. Co., 230 Minn. 327, 337, 41 N.W.2d 818, 824 (1950). "The gist of the action is not the conspiracy charged, but the tort working damage to the plaintiff." Id. (citation omitted). A conspiracy can be proved by circumstantial evidence. Nathan v. Saint Paul Mut. Ins. Co., 251 Minn. 74, 82, 86 N.W.2d 503, 509 (1957). The supreme court has stated:

Conspirators do not make minutes of their machinations, progress and objectives. Seldom, therefore, can conspiracy be proved by other than circumstantial evidence. It is only by assembling the results, with such evidence as may be of the progress thereto by the participants, that the victim can ever make a case of conspiracy. If in the end there is a completed structure of result, the frame of which has been furnished piecemeal by several individuals, the parts when brought together showing adaptation to each other and fitness for the end accomplished, it is at least reasonable to infer concert in both planning and fabrication.

Id. at 82, 86 N.W.2d at 509-10 (quoting Scheele v. Union Loan & Finance Co., 200 Minn. 554, 563, 274 N.W. 673, 678 (1937)).

Further, once a prima facie case of conspiracy has been established, the rule, in civil and criminal cases, is as follows:

Everything said, written, or done by a conspirator in execution or furtherance of the common purpose to commit a crime is deemed to be the act of every party to the conspiracy, whether present or absent, and is admissible as evidence against each of them. The combination need not be established by direct proof. No formal agreement to commit the acts charged need be shown. The existence of the combination or conspiracy may be inferred from other facts proved. If the other facts proved show that the defendants, by their acts, pursued the same object, often by the same means, one performing one part and another another part of the same so as to accomplish a common purpose, the existence of the conspiracy is one of fact.

Id. at 83, 86 N.W.2d at 510 (quoting State v. Kahner, 217 Minn. 574, 581, 15 N.W.2d 105, 109, cert. denied, 323 U.S. 768 (1944)).

Here, the district court found the actions of Cassidy and the other individuals support a determination that there was a common purpose to assault, intimidate, and administer punishment to the persons responsible for throwing the water balloon. We agree. After the balloon hit Brady, Cassidy stopped the car to let two individuals in the back seat out of the car. Because the car was a two-door sedan, Cassidy had to pull his seat forward to allow the passenger behind him to exit. While the two individuals were searching for the balloon-throwers on foot, Cassidy and the other two individuals went around the block attempting to locate them. After circling the block, Cassidy saw that the two individuals on foot were with someone, so he stopped the car and exited with his two passengers. The five individuals then confronted Moore and pushed him around. Brady subsequently punched Moore in the face and the five individuals returned to the car and fled. There was evidence that some of the individuals subsequently bragged about their accomplishment. Further, they admitted that prior to the incident they had been drinking and smoking marijuana and that, when searching for the balloon-throwers, they were angry. Thus, the individuals' after-the-fact claim that they only wanted to identify the persons who threw the water balloon was contradicted by evidence before the district court involving their actions before, during, and after the attack on Meyer and Moore.

We conclude the district court did not err in determining that Cassidy was involved in a conspiracy to locate and punish the persons who had thrown the water balloon. Because two of the individuals involved in the conspiracy assaulted and battered Daniel Meyer, resulting in his death, we further conclude the district court did not err in holding Cassidy liable for Meyer's death. In light of this conclusion, we need not address Cassidy's arguments that he cannot be held liable for Meyer's death under the alternative theories of joint enterprise and negligence.


[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.