Smith v. Hill

• Decision Date: 29 March 1929
• Docket Number: 25,100
• Citation: 165 N.E. 911,200 Ind. 616
• Parties: Smith et al. v. Hill
• Court: Indiana Supreme Court

165 N.E. 911

200 Ind. 616

Smith et al. v. Hill

No. 25,100

Supreme Court of Indiana

March 29, 1929

1. APPEAL---Credibility of Witnesses---Probative Force of Evidence---Not Determined.---An appellate tribunal will not determine the credibility of witnesses, nor determine the probative force of conflicting evidence to determine where the preponderance lies. p. 620.

2. APPEAL---Sufficiency of Evidence---How Determined---Rule on Appeal.---Where there is conflicting evidence, an appellate tribunal will merely determine whether there is sufficient evidence to sustain a verdict or finding, and will not disturb it if there is substantial evidence which fairly tends to establish all the material issues and to sustain the finding. p. 620.

3. HIGHWAYS---Quality of Materials Used---Dirt in Gravel---Finding Sustained on Appeal.---Although the contract for a highway improvement provided that "all materials shall be the best of their respective kinds," a finding that the contractor had complied with the specifications will not be disturbed on appeal notwithstanding the presence of dirt in the gravel used where there was no express specification of "washed" gravel. p. 621.

4. NEW TRIAL---Grounds for---"Decision" does not Refer to Judgment---Refers to Finding when Trial is by Court.---The word "decision," as used in cl. 6 610 Burns 1926, does not refer to the judgment, but has reference to the finding when the trial is by the court. p 621.

5. JUDGMENT---Improper Judgment---Proper Remedy for.---The remedy for an improper judgment is a motion to modify the judgment and not a motion for a new trial. p. 621.

6. JUDGMENT---Judgment Valid in Part---Objection Must be Made in Trial Court.---Where a judgment, in part, is valid, it will stand unless proper steps have been taken by objection presented to the trial court to secure a modification thereof, however erroneous the judgment may be. p. 621.

7. EVIDENCE---Opinion Evidence---Admissibility---Exception to Rule.---The rule that a witness will not be allowed to give his opinion on a subject as to which the court or jury is as well prepared to judge as the witness is subject to the exception which permits skilled witnesses to state an opinion in connection with facts observed and stated. p. 623.

8. EVIDENCE---Highway Improvement---Materials Used---Opinions of Experts---Admissibility.---In a proceeding to determine whether a road-improvement contract had been performed according to the specifications, the court properly permitted the contractor and the engineer in charge of the work, as experts, to answer questions calling for their opinions as to whether the gravel used on the road was "good quality paving material" and suitable for the road in question p. 623.

9. EVIDENCE---Opinion Evidence---By Persons of Special Knowledge.---Where there is evidence that a witness, from experience or learning, has special knowledge of materials or appliances, he may express an opinion as to quality and utility. p. 623.

From Morgan Circuit Court; Joseph W. Williams, Judge.

Remonstrance by David Smith as a resident freeholder and taxpayer, filed with the board of commissioners of Shelby County, objecting to the acceptance of a gravel road constructed by Herman C Hill as contractor, alleging that the road had not been improved according to the plans and specifications. The board of commissioners found that the contractor had not constructed the road according to the specifications, and ordered him to complete the road. On appeal to the circuit court, a change of venue was taken, and, after a hearing in the circuit court of the county to which the cause was sent, a finding in favor of the contractor was made. From a judgment thereon, the remonstrator and the board of commissioners appeal.

Affirmed.

David Smith, Charles A. Hack, George H. Meiks, McNutt & McNutt, Alonzo Blair and McDaniel & Myers, for appellants.

Claud R. Henry, Charles Tindall and S. C. Kivett, for appellee.

Martin, C. J. Myers, J., absent.

OPINION

Martin, C. J.

The appellant David Smith, as a resident freeholder, voter, and taxpayer of Morel Township, Shelby County, filed a verified remonstrance in the commissioner's court of that county alleging that the Albert Smith road in said township, which had been improved by grading, draining, and graveling by Herman C. Hill under a contract, had not been improved in accordance with the plans and specifications, and prayed that said road and improvement be not received and that all claims for making said alleged improvement be rejected.

The board of county commissioners determined that there was an issue raised by reason of the verified report of George E. Oltman, the engineer on said improvement, which stated that the road had been completed according to plans and specifications and the remonstrance filed by appellant Smith, and, upon trial of such issue, found and adjudged that the contractor, Hill, had not finished and constructed the road according to specifications, and ordered him to complete the same. From this judgment, Hill appealed to the Shelby Circuit Court, and took a change of venue from the county. The cause was sent to the Morgan Circuit Court, where, without additional pleadings, it was tried, the trial resulting in a decision and judgment in favor of the contractor, from which this appeal is taken. The alleged error relied upon for reversal is the overruling of appellant's motion for a new trial, wherein he assigns as reasons; that the decision of the trial court was not sustained by sufficient evidence and was contrary to law, and that the court erred in admitting certain evidence.

Appellant contends that there is an entire absence of evidence to prove that the gravel used in the highway was "of good quality paving material," or that it met the specification "all materials shall be the best of their respective kinds," as provided in the plans, specifications, and contract. The evidence is voluminous, covering 700 pages of the transcript and we have rarely found a case where the evidence given on behalf of each party is so diametrically opposed to that given on behalf of the other.

The appellants, Smith and three members of the board of county commissioners, and their witnesses, including Albert Smith, the petitioner for the road, who was also its superintendent of construction, the county auditor, the surveyor of another county, and half a dozen landowners and residents in the vicinity of the road, testified that the gravel used contained dirt or hard pan, as well as too much sand, several of them testifying that it was one-third gravel, one-third sand, and one-third dirt; that many lumps of dirt or hard pan, varying from the size of an egg to the size of a man's head, and sometimes larger, were hauled from the gravel pit to the road, and were found in all of the many holes dug, preceding the trial, for the purpose of securing samples of the gravel; some of the witnesses testified that the road was soft, cut up, and that, after rains, one automobile had to run in low gear, another sank in up to the axles on the side of the road, that a ton-load of straw and a tractor pulling a shredder could not pass over it.

The appellee, Hill; Oltman, the county engineer; thirteen men who hauled the gravel; two assistant superintendents of county roads; three county surveyors from other counties; two road contractors and several landowners and residents in the vicinity testified that the proper amount and quality of gravel was used, that it was a good quality paving material and suitable for the road; that there was a sufficient amount of coarse aggregate in the material--the testimony varying as follows: coarse gravel forty to sixty per cent., coarse sharp sand twenty-five to forty per cent.,...