Spraker v. Armstrong

79 Ind. 577

Opinion

Elliott, C. J.

— This case is very similar to that of Ricketts v. Sprakser, 77 Ind. 371, and is in a great measure gov'erned by the decision made in that case. The litigation grows out of the same subject-matter, and it is unnecessary to restate the questions decided in the former case. Under the decision the complaint of the appellees is bad, and several of the answers to which demurrers were sustained are good, and the -court erred in overruling the demurrers to the complaint and in sustaining demurrers to the answers.

There are however some questions in this case which were not presented in the one decided, and it is proper that they should be decided, since counsel request that it may be done.

Counsel inquire, "What is the remedy where a special verdict does not find upon material facts established by the evidence ? The answer to this is, by a motion for a new trial. If the verdict does not find all the material facts proved, it is contrary to the evidence. Ex Parte Walls, 73 Ind. 95. Where a special .finding or a special verdict is silent upon a point, it is equiv alent to a finding upon that point against the party who has the burden of the issue. Vannoy v. Duprez, 72 Ind. 26. If, therefore, the point is sustained by the evidence, the finding is-wrong and the party injured is entitled to a new trial.

Where the special verdict or the special finding is on its-face defective or imperfect, a motion for a venire de novo is proper. Kealing v. Vansickle, 74 Ind. 529; Brickley v. Weghorn, 71 Ind. 497; Peed v. Brenneman, 72 Ind. 288.

Since the decision in Graham v. The State, ex rel., 66 Ind. 386, the rule has been that the ofSce of a special verdict or a special finding is to find the facts which have been proved. The failure to find these facts is not a defect on the face of the-finding or verdict to be reached by a motion for a venire denovo.

The special verdict in this case is silent upon several material points upon which appellants had the burden, and is,, therefore, against them on these points. There was evidence fully proving these points, and appellants’ motion for a new trial is well supported.

Judgment reversed.