Brehm v. Hennings

• Decision Date: 24 June 1919
• Docket Number: 9,939
• Parties: BREHM v. HENNINGS
• Court: Indiana Appellate Court

123 N.E. 821

70 Ind.App. 625

BREHM v. HENNINGS

No. 9,939

Court of Appeals of Indiana

June 24, 1919

From Madison Superior Court; Willis S. Ellis, Judge.

Action by Philip Brehm against Joseph E. Hennings. From the judgment rendered, the plaintiff appeals.

Reversed.

Frank B. Foster and Byron McMahon, for appellant.

Philip B. O'Neill and Frederick Van Nuys, for appellee.

OPINION

MCMAHAN, J.

The appellant brought this action against the appellee to recover damages for an alleged breach of contract in failing to restore leased property at the expiration of the lease to the condition it was in at the time the lease was executed, and for a wrongful holding of the leased premises beyond the time for which they were leased.

The complaint was in four paragraphs. The first and second paragraphs sought to recover damages for the failure to restore the property to the condition it was in when the lease was executed, the third and fourth paragraphs were for damages for holding over after the expiration of the lease. An answer of general denial being filed, the cause was tried by a jury, and a general verdict was returned, which omitting the caption and signature, is as follows: "We the jury, find for the plaintiff upon the first paragraph of complaint and assess his damages at $ 1.00." This verdict was returned April 22, and on May 2 appellant filed a motion for a venire de novo on the ground that the verdict was incomplete, and that no verdict was returned as to the second, third and fourth paragraphs of complaint. This motion was overruled on June 6, and on June 27 appellant filed a motion for a new trial, which was also overruled.

The errors assigned are that the court erred: (1) In overruling the motion for a venire de novo; and (2) in overruling the motion for a new trial. There was no error in overruling the motion for a new trial, as it was not filed within the time fixed by statute.

Appellant contends that his motion for a venire de novo should have been sustained because the jury found only upon one paragraph of complaint and ignored the other three paragraphs.

Appellee insists that no question is presented on account of the failure of appellant to comply with the rules of this court in the preparation of his brief. The first four propositions in appellant's brief under the heading "Points and Authorities" are so worded and grouped that we can readily understand that they all relate to the assignment of errors relative to the overruling of the motion for a venire de novo, and are sufficient to require us to pass upon that question.

Appellee also insists that a verdict for the plaintiff on one of several paragraphs of complaint, without noticing the other paragraphs, is equivalent to a finding against the plaintiff on such other paragraphs.

There is some confusion among the decisions in this state concerning the office of a venire de novo, the result of a careless use of language in making general statements concerning a venire de novo and a failure to make any distinction between general and special verdicts.

For many years the rule of the common law, as stated in 2 Tidds, Prac. 992, and affirmed and followed in Bosseker v. Cramer (1862), 18 Ind. 44, and affirmed in many later cases, was the recognized rule in this state relative to the office of a venire de novo. The rule, as there stated, is this: "A venire do novo is granted when the verdict, whether general or special, is imperfect by reason of some uncertainty or ambiguity, or by finding less than the whole matter put in issue, or by not assessing damages."

This rule remained unchanged until 1879, when the Supreme Court, in Graham v. State, ex rel., 66 Ind. 386, after having its attention called to our practice Code, held that the failure of the court to find upon all the issues in a special verdict was no cause for a venire de novo, if such verdict had substance enough to form the basis of a judgment for either party. The court, on page 395, said: "The special verdict of finding is confined to the facts proved. * * *, the issues concerning which no facts are found should be regarded as not proved by the party on whom the burden of the issue or issues lies. * * * And if the facts proved and found do not determine some of the issues, those issues must be regarded as not proved by the party having the burden of proof resting upon him."

In Glantz v. City of South Bend (1886), 106 Ind. 305, 6 N.E. 632, where the court was again discussing the effect of a special verdict in which all the issues were not passed upon, the Graham case was approved, the court saying: "Approving and following, as we think we must, the more recent rule of practice in relation to special verdicts, we must hold in the case under consideration, that the trial court did not err in overruling appellant's motion for a venire de novo. * * * The burden was on her to establish this fact (want of care) by a fair preponderance of the evidence, and as the special verdict is entirely silent as to this fact, in the absence of the evidence, we would be bound to conclude that she had failed to prove such fact. In determining whether or not it was error to overrule the motion for a venire de novo, we cannot look to the evidence, where it is in the record."

In Bartley v. Phillips (1888), 114 Ind. 189, 16 N.E. 508, where the facts were found specially, the Supreme Court, in sustaining the action of the trial court in overruling the motion for a venire de novo, said: "That the court failed to find and state in its special findings any fact that may have been proven, or failed to find and state therein the force and effect of a certain clause in the mortgage, are questions not properly raised by a motion for a venire de novo. If all the facts were not found, or if facts are stated in the special findings of facts which the proof did not warrant, the remedy, and the only remedy, was by a motion for a new trial."

In Board, etc. v. Pearson (1889), 120 Ind. 426, 22 N.E. 134, 16 Am. St. 325, the court said: "There is no imperfection in the verdict, for sufficient facts are stated to enable the court to pronounce judgment, and, under the rule which prevails in this State, the failure to find upon all the issues does not entitle a party to a venire de novo. Wilson v. Hamilton, 75 Ind. 71; Jones v. Baird, 76 Ind. 164; Glantz v. Cityof South Bend, 106 Ind. 305, 6 N.E. 632; 1 Works Pr., section 971, and cases cited, n. This has been the rule since the decision in Graham v. State, ex rel., 66 Ind. 386, although the earlier cases declared a different rule. Quill v. Gallivan, 108 Ind. 235, 9 N.E. 99, and cases cited; Bartley v. Phillips, 114 Ind. 189, 16 N.E. 508; Indiana, etc., R. W. Co. v. Finnell, 116 Ind. 414, 19 N.E. 204. In the case of Glantz v. City of South Bend, supra, the court referred to Bosseker v. Cramer, 18 Ind. 44, and some other cases, and, after showing that the doctrine of those cases had been denied in Graham v. State, ex rel., supra, and that the later cases approved the doctrine of that case, declared in effect that the rule as stated in Graham v. State, ex rel., supra, must be considered as established. The effect of the decisions has been to overrule Bosseker v. Cramer, supra, although the express statement that it was overruled has probably not been made. We feel bound to adhere to what has so long been the rule, and to hold, as has been so often held in recent cases, that where the verdict is perfect on its face, and so fully finds the facts as to enable the court to pronounce judgment upon it, a motion for a venire de novo will be denied, although the verdict may not find upon all of the issues."

This statement of the court is broad and sweeping in its effect, but we think it should be considered in the light of the record then under consideration. The opinion in this case does not disclose whether the verdict was general or special, but on an examination of the record we find there was a special verdict, so that what the court said in relation to Bosseker v. Cramer, supra, being overruled, should be understood as referring only to special verdicts.

In Central Union Tel. Co. v. Fehring (1896), 146 Ind. 189, 45 N.E. 64, the appellee's complaint was in two paragraphs to recover a statutory penalty for failure and refusal on the part of appellant to supply appellee with telephone facilities without discrimination or partiality. The case was tried by a jury, which returned the following verdict: "'We, the jury, find for the plaintiff and assess his damages at $ 100.00.'" The statute provided a penalty of $ 100 for each violation. Both paragraphs were the same, except the offense was alleged as on different days. Appellant contended that, the jury having assessed the appellee's damages at $ 100, it was evident that the jury had only found for appellee on one paragraph of complaint, and that the verdict was defective because it did not cover all the issues. The court held that, if there was any error in not assessing the damages at $ 200, it was in appellant's favor, and that it was in no position to complain. In referring to the motion for a venire de novo, the court, on page 193, said: "The rule in this State is that a motion for venire de novo will not be sustained unless the verdict, whether general or special, is so defective and uncertain upon its face that no judgment can be rendered upon it. Bartley v. Phillips, 114 Ind. 189, 16 N.E. 508, and cases cited on p. 192; Board, etc. v. Pearson, 120 Ind. 426, 16 Am. St. Rep. 325.

"A verdict, however informal, is good if the court can understand it. Daniels v. McGinnis, Admr., 97 Ind. 549. The verdict in this case is not informal or defective, even if appellant's contention, that it only finds for appellee upon one...