Barr v. Sumner

• Citation: 183 Ind. 402,109 N.E. 193
• Decision Date: 18 June 1915
• Docket Number: No. 22416.,22416.
• Parties: BARR et al. v. SUMNER et al.
• Court: Indiana Supreme Court

183 Ind. 402

109 N.E. 193

BARR et al.

v.SUMNER et al.

No. 22416.

Supreme Court of Indiana.

June 18, 1915.

Appeal from Circuit Court, Benton County; Jas. T. Saunderson, Special Judge.

On petition for rehearing. Petition overruled.

For former opinion, see 107 N. E. 675.

Stuart, Hammond & Simms, of La Fayette, Ryan, Ruckelshaus & Ryan and Fraser & Isham, of Fowler, for appellants. Kumler & Gaylord, of La Fayette, and Monks, Robbins, Starr & Goodrich, of Indianapolis, for appellees.

MORRIS, J.

[1] Appellees have filed an earnest and able brief on their petition for rehearing, in which they seek a reconsideration of the questions decided adversely to their contentions. It is especially urged that manifest error appears in the decision that an appellate court, in determining the alleged insufficiency of the evidence to support a general verdict, may consider the special findings of the jury, on one or more of several issues joined.

It is insisted that Evansville, etc., Trac. Co. v. Spiegel, 49 Ind. App. 412, 94 N. E. 718, 97 N. E. 949, cited with approval in the original opinion, is not an authority binding on this court, especially when considered in connection with the dissenting opinion of Hottel, J., concurred in by Felt, J. Regarding this contention, it is sufficient to say that while no petition to transfer was filed in that case, and while it was not considered by this court previous to the original hearing of this cause, we did not on such hearing overlook the reasoning of the dissenting opinion in the Spiegel Case, yet, nevertheless, we are of the opinion that the rule declared in the majority opinion in that case is the correct one.

It is further claimed that Staser v. Hogan, 120 Ind. 207, 228, 22 N. E. 990, 992, supports appellees' contention, and they note the following paragraph appearing in that opinion:

“The motion is for a new trial, assigning as a reason that the verdict of the jury is not supported by the evidence. In such case the attention of the court is not called to the interrogatories and the answers thereto, but it is directed to the evidence in the cause. It is the duty of the court to examine the evidence, and, if it supports the general verdict, the motion should be overruled, without any regard to the manner in which the answers to interrogatories are made.”

On the same page where the above paragraph is found, the court uses the following language:

“In a case like this, where there is nothing in the record to indicate that the jury did not base its verdict upon the charge which the evidence tends to support, we think it wholly immaterial whether the answers to interrogatories addressed to either branch of the case are supported by the evidence or not supported. If the general verdict is not supported by the evidence, in such case the motion for new trial, assigning for reason that the verdict is not so supported, should be overruled.” (Italics ours.)

As stated in the original opinion, there was, in Staser v. Hogan, supra, no conflict between the special and general findings. No question was there presented of the sufficiency of the evidence to sustain the general verdict on one issue, where the jury had specially found for appellant on another. As stated in that opinion, on page 227 of 120 Ind., on page 991 of 22 N. E.:

“It is not claimed that the answers to these interrogatories are in conflict with the general verdict, but it is contended by the appellants that the answers to the interrogatories are not supported by the evidence. It is contended that such an open disregard of the evidence, in particular and material things, as is exhibited in this case, inexorably undermines the general verdict, and requires that it should be set aside as...