Smith v. Hill
| Decision Date | 29 March 1929 |
| Docket Number | No. 25100.,25100. |
| Citation | 165 N.E. 911,200 Ind. 616 |
| Parties | SMITH et al. v. HILL. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Morgan Circuit Court; Jos. Williams, Judge.
David Smith, as a resident freeholder, voter, and taxpayer of Morel township, Shelby county, filed a verified remonstrance in the Commissioner's Court of Shelby County, alleging that a certain road improved by Herman C. Hill under a contract, had not been improved in accordance with plans and specifications, and prayed that the road and improvement be not received, and that claims for making improvement be rejected. The Board of County Commissioners adjudged that the contractor had not constructed the road according to specifications, and ordered him to complete the road. On appeal to the circuit court, judgment was rendered in favor of the contractor, and Smith and the Board of Commissioners appeal. Affirmed.David Smith, Charles A. Hack and George H. Meiks, all of Shelbyville, McNutt & McNutt, of Martinsville, and Alonzo Blair and McDaniel & Myers, all of Shelbyville, for appellants.
Claude R. Henry and Charles Tindall, both of Shelbyville, and S. C. Kivett, of Martinsville, for appellee.
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 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 on 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 hardpan, 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 hardpan, 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 40 to 60 per cent., coarse sharp sand 25 to 40 per cent., loam and smooth sand 10 to 20 per cent.; that the men working on the road were instructed to remove all dirt, clay, or hardpan which became mixed with the gravel at the pit, and that they did not allow any dirt to go into the road, except a small amount when the hauling began; that they had taken many samples of gravel from the road, and no chunks of dirt, clay, etc., had been found, except small lumps less than two inches in size; that the road is packed good, is smooth and level, is wearing well; that the county engineer had filed a report with the county commissioners showing that the road had been completed according to specifications; that the same gravel had been used successfully for cement work; and that loads of hay and a clover huller were pulled over the road without difficulty.
[1][2] Where there is conflicting evidence, the Supreme and Appellate Courts of Indiana, even in equity cases, will not determine the credibility of witnesses, nor will they weigh or determine the probative force of the conflicting evidence to determine where the...
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