Perry, Mathews-Buskirk Stone Co. v. Wilson

• Decision Date: 21 April 1903
• Citation: 160 Ind. 435,67 N.E. 183
• Parties: PERRY, MATHEWS-BUSKIRK STONE CO. v. WILSON.
• Court: Indiana Supreme Court

160 Ind. 435

67 N.E. 183

PERRY, MATHEWS-BUSKIRK STONE CO.

v.WILSON.

Supreme Court of Indiana.

April 21, 1903.

Appeal from Circuit Court, Monroe County; Newton Crooke, Special Judge.

Action by Walter A. Wilson against the Perry, Mathews-Buskirk Stone Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under section 1337u, Burns' Rev. St. 1901, Acts 1901, p. 590. Reversed.

Duncan & Batman, for appellant. East & East and McHenry Owen, for appellee.

MONKS, J.

This action was brought by appellee to recover damages for personal injuriesreceived by him while in appellant's employ in its stone quarry as a “breaker” or “capper.” A trial of said cause by a jury resulted in a general verdict against appellant in favor of appellee.

It is claimed by appellee that neither the complaint, demurrers, nor answers are properly in the record. The reasons urged by appellee to sustain this contention are the same as those urged by the appellee in Southern, etc., R. Co. v. Martin (this term) 66 N. E. 886, and upon the authority of that case we hold that the pleadings above named are properly in the record.

The errors assigned and relied upon for reversal by appellant are: (1) The court erred in overruling appellant's demurrer to the third paragraph of complaint. (2) The court erred in overruling appellant's motion for a judgment in its favor on the answers of the jury to the interrogatories notwithstanding the general verdict. (3) The court erred in overruling appellant's motion for a new trial.

On account of appellant's having failed to set forth in its brief a copy of the third paragraph of the complaint, or the substance thereof, and the demurrer thereto, as required by clause 5 of rule 22 of this court, the first assignment of error is waived.

Appellant has not set forth in its brief a copy of the interrogatories and answers of the jury thereto, nor is the substance of said answers or a condensed recital thereof contained in said brief as required by said rule. Some cases require the exact language of pleadings, interrogatories, etc., and in others the substance may be sufficient. Elliott's App. Proc. § 440. For this reason the second error assigned is waived. All but two of the grounds assigned for a new trial are waived for the same reason. When said rule is properly complied with, all the questions presented by the assignment of errors can be determined by an examination of the briefs. It was said by this court in McElwaine-Richards Co. v. Wall, 65 N. E. 753: “The evident purpose of rules 22 and 23 [55 N. E. v, vi], in requiring that the appellant and appellee shall make the respective statements therein mentioned, was to relieve the court of the labor of searching the record in order to ascertain whether the errors complained of are sustained thereby. It will be observed that rule 23 exacts of the appellee the duty in his brief to point out any omissions or inaccuracies in the statement made by appellant in respect to the record. It is evident, therefore, that these respective rules subserve another important purpose in the furtherance of business pending in this court; that is, that all of the members thereof will be enabled to consider the errors involved through and by means of an examination of the respective briefs without necessarily being required to resort to an inspection of the transcript.” If this rule is wholly disregarded in an appeal, the result is a dismissal, the same as if no brief had been filed within 60 days after submission, as required by rule 21 (55 N. E. v). Portland Co. v. United States, 15 Wall. (U. S.) 1, 21 L. Ed. 113;Beck v. O'Connor, 21 Mont. 109, 114, 115, 53 Pac. 94;Heath v. The Silverthorn, etc., Co., 39 Wis. 146, 159;Hoffman v. Chicago, etc., R. Co., 86 Wis. 471, 56 N. W. 1093;Long v. Long, 96 Mo. 180, 8 S. W. 766;Smith v. Woods, 9 Kan. App. 884. 59 Pac. 660;Beck v. O'Connor (Mont.) 8 S. W. 766, 53 Pac. 94;Smith v. Wells, etc., Co., 144 Ind. 266, 270, 271, 43 N. E. 131;Stephens v. Stephens, 51 Ind. 542; Ewbank's Manual, §§ 21, 179, 222. When the rule is not wholly disregarded, the questions presented by the assignment of errors, to the extent the rule is complied with, will be determined, and the others will be considered waived. Pittsburgh, etc., R. Co. v. Wilson (this term) 66 N. E. 899, and cases cited.

The jury wrote, as an answer to interrogatory No. 39, submitted by the court, that “the evidence is conflicting.” No answer was made to interrogatory No. 40, which was to be answered in the event the thirty-ninth was answered in the affirmative. These interrogatories were upon the question of appellee's knowledge of the defect in the stone, the fall of which injured him, and his opportunity of knowing of such defect. Appellant at the proper time asked that the jury be required to answer said interrogatories, and objected to the discharge of the jury until the same were answered. The court overruled said motion, and discharged the jury, to which rulings of the court appellant objected, and assigned the same as causes for a new trial. If there was no evidence on the subject embraced in the interrogatories, then the jury might have answered no evidence, but, if there was a conflict in the evidence on that subject, it was the duty of said jury to answer the same according to the preponderance of the evidence, the same as it was to render a general verdict. If there was no preponderance either way, then the jury should have answered the same against the party who had the burden of proof as to the fact inquired about. If the jury were unable to agree upon the answers to said interrogatories, it was their duty to report such fact to the court, and, if finally unable to agree, the court should have discharged the jury on account of such disagreement, the same as in a case where a jury cannot agree upon a general verdict. In such case there is no verdict returned. Maxwell v. Boyne, 36 Ind. 120, 126;Rowell v. Klein, 44 Ind. 290, 293, 294, 15 Am....