Jolly v. The Terre Haute Drawbridge Co.

• Decision Date: 17 June 1857
• Citation: 9 Ind. 397
• Parties: Jolly and Another v. The Terre Haute Drawbridge Company
• Court: Indiana Supreme Court

9 Ind. 397

Jolly and Another v. The Terre Haute Drawbridge Company

Supreme Court of Indiana

June 17, 1857

Rehearing November 24, 1857

Reported at: 9 Ind. 397 at 400.

From the Putnam Circuit Court.

The judgment is affirmed, with 3 per cent. damages and costs.

Oliver H. Smith, for appellants.

John P Usher and David McDonald, for appellees.

OPINION

Stuart J.

Trespass on the case, commenced in the Vigo Circuit Court, September term, 1852. The declaration is conformed to the old practice. Upon change of venue to Putnam County, in 1853, the pleadings and issues were made up under the new practice.

The Drawbridge Company sued Jolly, the captain, and Blinn, the pilot, of the steamer, American Star, alleging that, at the time of the injury complained of, the bridge company were the owners and in the lawful possession of the bridge in question, erected across the Wabash river, near Terre Haute; that the bridge was erected in pursuance of an act of the legislature of Indiana, the substantial parts of which are set out; that the steamer, American Star, belonging to the appellants, in March, 1852, through their carelessness, misdirection, etc., ran against the bridge and broke and injured it;--laying the damage at 6,000 dollars.

Answer, that the river was at, etc., navigable and a public highway; that the steamer was employed in commerce on the river; that the bridge was an obstruction to navigation, and a common nuisance; that the steamer was driven against the piers by currents, etc., against the will and despite the efforts of the appellants.

Reply, that the bridge was so constructed as to leave the navigation free, and in a condition, with reasonable care, to be safely navigated.

This is the substance of the pleadings. Trial by jury; verdict for plaintiff for 1,750 dollars; motion for a new trial overruled; and judgment on the verdict.

The record does not purport to contain all the evidence; nor is there any special case reserved under the 347th section, 2 R. S. p. 116.

Five errors are assigned. The first is the general assignment, which has several times been held bad under the statute. 2 R. S. p. 161.

The second error assigned, is the suppressing the depositions of appellants, as contained in the bill of exceptions. This error, if one it be, cannot avail the appellants, because when the decision was made, they did not except. It must be presumed they did not intend to rely on that ruling for error, seeing that the opinion of the Court overruling the motion as to the opening and close is excepted to.

By leave of the Court, the appellants had sixty days to make up and file their bill of exceptions. This was done within the time. The exception is taken in that bill in these words: "The defendants except to the opinion of the Court on the several questions." It might be sufficient to say, that then, at the close of the case, after the overruling of the motion for a new trial, it was too late to except to the opinion of the Court in suppressing the depositions. But after looking into the parts suppressed, we have no hesitancy in saying that they were correctly suppressed. They were partly calling out by defendants themselves, what they had or had not said; partly speculations of the witnesses, which were clearly inadmissible. Other parts consisted of evidence tending to show good character for care, prudence, and sobriety of Jolly and Blinn. This question was carefully examined in Church v. Drummond, 7 Ind. 17; and it was held that where the character of the defendants was not in issue, evidence was not admissible to sustain it. So that, on the merits, the Court correctly suppressed the depositions.

The policy of adhering to the statutory practice is obvious. Where the exception is taken at the time, the attention of the Court below is arrested before it is yet too late to correct its error, if any there be. Stump v. Fraley, 7 Ind. 679.

The third error assigned, is for refusing the instructions asked by the appellants; and the fourth for giving those asked by the appellees. There are eleven of each. The error assigned, is to the ruling of the Court on each set of instructions collectively. This is not a good exception or assignment under the statute. The assignment of the errors relied upon must be specific. 2 R. S. p. 161, sec. 568. And this is the more evident from the practice required in the Court below. Thus, a party excepting to the giving or refusing instructions, should write at the close of each instruction, "refused and excepted to," or "given and excepted to;" which should be signed by the party or his attorney. 2 R. S. p. 112, sec. 325. Hence, it is necessary that the exception, and the assignment of error based upon it, should indicate each instruction deemed erroneous, separately.

Again, unless the whole evidence is in the record, or a case is made up under the statute (2 R. S. p. 116, sec. 347); or the instructions are clearly erroneous under any hypothesis (Murray v. Fry, 6 Ind. 371); we have time and again decided that we will indulge every presumption in favor of the ruling of the lower Court.

It is said that the instructions were pertinent to the issue. There are some decisions under the old practice where such a mode of presenting questions is seemingly sanctioned. But it was an indolent, and in many respects a vicious practice, not to be encouraged. Such a mode of making up the record cannot be permitted to supersede the statutory practice. 2 R. S. pp. 115, 116; Zehnor v. Beard, 8 Ind. 96, and numerous late cases.

The labor is thus properly thrown upon the parties, to indicate, in due form, the errors complained of--not upon this Court to search for them.

There is another rule of practice neglected by counsel, which is equally fatal to the consideration of the errors assigned upon the instructions refused. It will be seen that the instructions complained of are special, that is, asked by one or other of the parties, as distinguished from general instructions given by the Court, on its own motion. These special instructions must be reduced to writing, numbered, and signed, and delivered to the Court, after the evidence is concluded, and before the argument. 2 R. S. p. 110. The object is, to give the Court time, during the argument, to deliberate upon the instructions, whether they should be given or refused. To deliver them after the argument, especially if they are long and complicated, would be a surprise upon the Court. Hence, when instructions asked are refused, we must presume, in the absence of anything to the contrary properly placed upon the record, that they were not delivered to the Court at the proper time.

The fifth error assigned, is overruling the motion for a new trial. As the evidence is not in the record, the ruling must be presumed correct.

Per Curiam.--The judgment is affirmed, with 3 per cent. damages and costs.

This cause, when first considered, was held under advisement for some time, partly to see if the "merits," as they are called, could not be reached amid the preliminary questions of practice raised by opposing counsel. The opinion was finally filed in the clerk's office, after the adjournment to chambers, and after all the questions of practice embraced in it had been repeatedly settled in other cases.

In that opinion, the several errors assigned are examined in their order, and the result is the following propositions:

1. The general assignment of errors is not sufficient--under the new practice it must be specific.

2. The suppression of the appellants' depositions was not available on error, because the appellants did not, at the time, except to the opinion of the Court in that behalf.

3 and 4. That to assign for error the giving of one set of instructions, consisting of eleven distinct propositions, and the refusal to give a like number asked by the appellants, without pointing out any particular objection to any one of the instructions given, and when they were not all clearly erroneous, and without the evidence in the record to enable us to judge of the pertinency of those refused,--was, under the code, too general, and raised no question in this Court.

5. That as the evidence was not in the record, we must presume the motion for a new trial was correctly overruled.

6. It was further suggested that, if it did not appear that the special instructions were asked at the proper time, we would presume that they were refused for that reason.

These points of practice were so plain, and had been so often determined in other cases, and withal, were so cogently urged by counsel for the drawbridge company, that we had no option but to meet them, and declare the practice as the statute had expressly provided.

For obvious reasons, we overlook the tone of the petition for a rehearing. Though it has not been usual to encourage further argument in such applications, counsel for the drawbridge company was permitted to file a reply, which is distinguished, as papers in this Court should be, for its good taste, and conclusive legal reasoning.

In that reply, counsel for the bridge company puts the question to rest thus: "The objections to the bill of exceptions were taken by the appellees, and this Court could not avoid, if it would, passing upon them."

In considering the petition for a rehearing, we will examine briefly--

1. The authorities cited in the petition itself ^[1].

2. The authorities in other states having the same or similar codes of practice.

3. Our own decisions upon the points of practice involved.

This will lead us to review the doctrine in the case of Zehnor v. Beard, 8 Ind. 96, about which some doubt has been expressed.

1. Many of the cases cited in the petition for a rehearing are wholly...