Evansville & S. Traction Co. v. Spiegel

• Decision Date: 15 March 1912
• Docket Number: No. 7,194.,7,194.
• Citation: 49 Ind.App. 412,97 N.E. 949
• Court: Indiana Appellate Court
• Parties: EVANSVILLE & S. TRACTION CO. v. SPIEGEL.

49 Ind.App. 412

97 N.E. 949

EVANSVILLE & S. TRACTION CO.

v.SPIEGEL.

No. 7,194.

Appellate Court of Indiana.

March 15, 1912.

Dissenting opinion.

*949For majority opinion, see 94 N. E. 718.

HOTTEL, J.

I cannot concur in that part of the majority opinion (94 N. E. 718) in this case expressed in the following words, viz.: “In deciding whether or not the general verdict is sustained by the evidence, the facts found by way of answers to interrogatories will be treated the same as though they were established by the undisputed evidence, unless some of the facts so found are unsupported by any evidence.” I dissent from this declaration because I believe that: (1) It is wrong in principle. (2) It gives to the answers to such interrogatories an effect and influence upon and against the general verdict not provided or contemplated either by the letter or spirit of sections 572 and 573, Burns 1908, which alone furnish the right to propound such interrogatories and define the influence and control the answers thereto shall have upon the general verdict. (3) It violates thoroughly established and universally recognized principles long ago announced by the Supreme Court, and continuously followed by that court and this court, without question and without change or modification. Said announcement is wrong in principle, because it, in effect, declares that this court in determining whether or not there is any evidence to sustain the verdict shall be governed, not by its own investigation of the evidence and its independent judgment based thereon, but that to the extent that the jury have expressed their opinion upon the subject of the weight of the evidence in their answers to interrogatories, where there is any evidence to support such opinion, this court shall adopt the same and be controlled thereby. Such announcement, in our opinion, confuses two essentially different subjects, viz., the evidence in the case, and the finding of the jury as to what the evidence shows. When the court is called upon to determine what the special finding of the jury is upon the facts submitted to it by the interrogatories, it necessarily determines said question from the answers to such interrogatories, independent of and regardless of what the evidence may show upon such subject. Upon the other hand, when such court is called upon to determine whether the verdict is sustained by sufficient evidence, it should look to the evidence alone, and give no thought or attention to any finding the jury may have made upon any of the facts to which such evidence was addressed. That we should look to the evidence alone in determining its sufficiency to sustain the general verdict is we think made evident by the manner and the language in which the question is presented to the court for its consideration. This question is presented to this court in one way only, viz., by assigning as one of the grounds for a motion for new trial that “the verdict of the jury is not sustained by sufficient evidence,” not that “said verdict, when considered in connection with the answers to interrogatories, is not sustained by the evidence.” Can it be said that this court can determine whether there is any evidence to sustain the several essential facts which the general verdict finds to be true by looking to see how some other tribunal has determined the question of the preponderance of the evidence as to some or all of such independent facts? Shall the conscience and judgment of this court in determining said question be influenced or controlled in whole, or in part, by the conclusion of some other tribunal on a different question? Must, or can, this court say, under its oath, that there is no evidence to sustain the verdict simply because a jury has said the preponderance of the evidence is against the verdict?

In this connection it is important to keep in mind the difference between the question which this court is called upon to determine and that which the jury is called upon to determine by their answers to interrogatories. This court determines simply whether there is any evidence to support each material fact represented by the general verdict, while the jury is called upon to say in its answer to each interrogatory propounded to it which way the evidence preponderates as to such particular fact inquired about. If the judgment and conscience of this court is to be bound and controlled by the judgment and conclusion of some other tribunal, it should at least be confined to the same question passed upon by such other tribunal.

We said, also, that the rule declared by the majority opinion violates the letter and spirit of the sections of the statute providing for interrogatories to the jury, and for motion for judgment thereon. Said sections of statute provide as follows, viz.: “Verdict -Interrogatories-That in all actions hereafter tried by a jury, the jury shall render a general verdict, but in all cases when requested by either party, the court shall instruct them when they render a general verdict to find specially upon particular questions of fact to be stated to them in writing in the form of interrogatories on any or all the issues in the cause, and this shall be the only form of verdict submitted to or rendered by the jury in the cause: Provided: The provisions in this section shall not apply to cases in equity. These interrogatories are to be recorded with the verdict.” Section 573, Burns 1908, provides: “When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” These provisions*950of the statute indicate the sole and only purpose of such interrogatories, and that is that they may be submitted by a party desiring a special finding upon any particular facts within the issues, and the jury may be required to answer them and return them with their verdict to the end only that, if there be irreconcilable conflict between such answers and the general verdict, such answers will control, and the court must give judgment thereon. They owe their existence to statutory enactment, and their purpose and the scope of their application is defined and limited thereby. There is no provision for their consideration in connection with the evidence, and such consideration is neither within the spirit or letter of said sections.

We have said, also, that said rule declared by the majority opinion herein violates well-established principles announced by the Supreme Court and this court. Upon this contention we submit that: In determining whether...