The Louisville, New Albany and Chicago Railway Company v. Miller
Decision Date | 10 May 1894 |
Docket Number | 16,320 |
Citation | 37 N.E. 343,141 Ind. 533 |
Parties | The Louisville, New Albany and Chicago Railway Company v. Miller |
Court | Indiana Supreme Court |
Petition for Rehearing Overruled June 11, 1895.
From the Clinton Circuit Court.
The judgment is affirmed.
G. W Kritzinger, E. C. Field, S. O. Bayless and C. G. Guenther for appellant.
E Ritter, H. L. Ritter, C. S. Wesner, D. J. McMath, P. W. Gard and J. C. Farber, for appellee.
This was an action by the appellee against the appellant in the court below for damages on account of an alleged personal injury resulting from the alleged negligence of the appellant. Trial by jury, special verdict, assessing the damages at $ 12,500. Appellant's motion for judgment in its favor on the special verdict was overruled, to which it excepted.
Its motion for a new trial, assigning as reasons therefor many errors in the trial leading up to the verdict, among which were that it was contrary to law and not supported by sufficient evidence, was sustained and a new trial was granted.
On a second trial by jury another special verdict was returned assessing appellee's damages at $ 10,000. The court rendered judgment upon that verdict over a motion for a new trial.
Such of the errors assigned here as are insisted on in the appellant's brief call in question the action of the trial court in overruling the appellant's motion for judgment on each of the special verdicts, and overruling appellant's last motion for a new trial.
The first question demanding consideration in the natural order is that on overruling the motion for judgment in appellant's favor on the first verdict. Appellant insists that if it was error to overrule that motion and refuse to enter judgment in its favor on that verdict, this court ought to reverse the judgment recovered on the second trial and set aside all the proceedings subsequent to that error and order the trial court to render judgment upon that verdict in favor of the appellant.
In support of this contention, appellant cites Bisel v. Hobbs, 6 Blackf. 479, where it is said: "So, where a verdict has been set aside and a new trial granted, for reasons not recognized by the law, and upon the second trial, judgment has been rendered in favor of the party obtaining the new trial, that judgment will be reversed, and the party that obtained the first verdict will be restored to his rights under that verdict." Appellant also cites to the same effect Cummins v. Walden, 4 Black, 307.
The case at bar is wholly different from those just cited. There the new trial had been granted against the party complaining; here the new trial was granted in favor of and in compliance with the request and motion of the party complaining. In that case the new trial had been granted for a cause unknown to the law--a cause for which the law did not authorize a new trial. In this case all the numerous causes assigned in the motion for the new trial granted were such as the law authorized and required.
Appellant also cites Brannon v. May, 42 Ind. 92 (102), to the effect that moving for judgment on the verdict did not cut off the motion for a new trial, and on this case seeks to build the theory that, therefore, the motion for a new trial did not waive the motion for judgment on the verdict. That case however does not, as counsel assert, hold that the motion for a new trial is no waiver of the previous motion for judgment on the verdict. All this court there held was that "we think where there is a general verdict, with special findings by the jury in answer to questions propounded to them, the party against whom the general verdict is returned may move for judgment in his favor on the special findings, notwithstanding the general verdict, without losing his right to move for a new trial in case his motion for judgment should be overruled."
That is not the question here. The question here is, what effect on appellant's exception to the overruling of its motion for judgment did the action of the trial court have in granting appellant's motion for a new trial. It asks us to set aside and reverse all the proceedings subsequent to the overruling of its motion for judgment on the special verdict. These proceedings are the result of its own motion, because there would have been no new trial if it had not asked for the same. It was said in one of the cases cited by appellant on this point, namely, Cummins v. Walden, supra, that "It would be giving the plaintiff too great an advantage, to permit him to take the chance of a verdict, and when it is lost, to relieve him from the verdict and give him a chance with another jury merely because the evidence against his claim was stronger on the first trial than he expected it would be."
The appellant deliberately took the chances of a more favorable verdict on the second trial than that of the first, when it moved the court to grant it a new trial, and now that the result is a disappointment is no reason why it should be relieved from the consequences of its own act. Even though the first verdict did not find facts enough to support a judgment in favor of the plaintiff, thereby entitling defendant to judgment on motion in its favor on such verdict had it stood by its motion therefor, yet that verdict has been set aside and a new trial granted at its own instance and request. Before appellant's present request for judgment in its favor on that verdict can be granted such verdict must be restored to life, to its condition before it was set aside. Because, as was said by this court in State, ex rel., v. Templin, 122 Ind. 235, 238, 23 N.E. 697: "The actual granting of a new trial supersedes the effect of the former trial; or wipes out the verdict; no judgment can be rendered upon it," citing Hilliard New Trials, 74; Edwards v. Edwards, 22 Ill. 121; Hidden v. Jordan, 28 Cal. 301.
Before that verdict can be relieved of this effect of being wiped out the order granting the new trial producing that effect must be reversed. That can only be done by making it appear affirmatively in the record that the order was erroneous and that it was, or probably was, prejudicial to the party complaining. Harter v. Eltzroth, 111 Ind. 159, 12 N.E. 129; New v. New, 95 Ind. 366; Cline v. Lindsey, 110 Ind. 337, 11 N.E. 441.
It must further appear that appellant objected or excepted to the order granting the new trial. A ruling without objection or exception thereto by the complaining party can not be available error. Swan v. Clark, 80 Ind. 57; Grubbs v. Morris, 103 Ind. 166, 2 N.E. 579; Leyner v. State, 8 Ind. 490; Elliott App. Proced., section 624, and authorities cited.
But instead of showing an objection or exception to the ruling of the court by which the verdict was wiped out, appellant actually invited, asked for, and procured the ruling to be made. Judge Elliott, in his Appellate Procedure, at section 626, says: See the numerous authorities cited to this section. We therefore conclude that by procuring the trial court to set aside the first verdict and grant a new trial, the appellant waived its right to insist on any error in overruling its motion for judgment in its favor on such verdict. For that reason we have not examined the first verdict to see whether appellant's motion for judgment thereon in its favor was well taken or not in the event it had stood by such motion. It might have made the error, if such there was, in overruling the motion available by objection to any action of the court inconsistent with judgment in its favor on such verdict.
The second special verdict contains the following facts:
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