Evansville & Princeton Traction Co. v. Broermann

Comstock, J. Action by appellee against appellant to recover damages for injury to appellee’s real estate and growing crops, caused by appellant’s cutting into a ditch and diverting the water so as to overflow appellee’s land. Defendant answered by general denial, after demurring to [48] each paragraph of the complaint. The issues were decided in favor of appellee, a verdict returned by the jury, and judgment rendered thereon in his favor for $300. On motion by appellant for a new trial the court announced that, unless appellee remit the sum of $75 from the verdict, the motion for a new trial would be sustained, which sum of $75 appellee remitted. The motion for a new trial was overruled, exceptions reserved, a judgment rendered in his favor vacated and set aside, and judgment entered for the sum of $225, with interest from the date of the rendition of the verdict. Appellant assigns as error the action of the court in overruling its demurrer to the first and second paragraphs of the complaint and in overruling its motion for a new trial. 1. It is objected to each paragraph of the complaint that the description of the premises is indefinite. This defect should have been presented to the trial court by a motion to make more specific. But it is in effect conceded by appellant, and justly so, that appellee, upon the showing made, could claim damages for the use of the land. 2. This entitled appellee to substantial relief, and the demurrer was therefore properly overruled. Linder v. Smith (1892), 131 Ind. 147. 3. While E. E. Watts, a witness in behalf of appellant, was on the stand, counsel for appellant interrogated him as follows: ‘ ‘ I will ask you to examine this map and state to the court and jury what that is ? A. That is a topographical chart prepared by the United States government survey. You may state whether it is correct so far as it affects the lands in this neighborhood? A. It is. Now, I will ask you to state, Mr. Watts, what, from this map, is shown to be the watershed drained through this tile ? Question by Mr. Clark: Did you make it ? . [49] ■ A. No, sir. Mr. Clark, of counsel for plaintiff: I object to the use of it. The Court: Do you wish to use it? Mr. Stilwell, of counsel for defendant: We think it would settle a much mooted question; that is, there is a sharp conflict in the testimony as to the amount of land drained through this tile, and also to the south of the Broermann land, and we want to use it to show the amount of land that is drained through these places. .The evidence offered by the witness is that it is accurate. If it is, we think it ought to go in evidence. The Court: The last question is what the map shows. I do not think it would be competent. Mr. Stilwell: I do not know that the map is drawn in such a manner that persons other than engineers are able to understand it without an explanation. These map's are drawn by engineers, and are more for the use of engineers of the government, and of course the map itself requires some explanation. It does not explain itself is the reason I ask to have the engineer explain it. The Court: I do not think the map is competent evidence, as it will depend solely upon the testimony of the witness as to the value of the map.” The defendant then offered in evidence exhibit No. 1, designated by him as the topographical chart prepared by the United States government survey. The objection to its introduction was sustained, and appellant excepted. The court did not err in re-' fusing to permit the witness to state what the map showed. 4. The appellant makes the refusal of the court to permit said witness to explain the topographical chart to the jury, and' to permit the defendant to offer the same in evidence, the fourteenth reason for a new trial. At no time was the court informed as to what this offered evidence would show. This was necessary to save the question. [50] 5. That the damages are excessive is another reason for a new trial. Upon this issue there was much conflict in the evidence. Upon the subject of remittitur, this court in Cleveland, etc., R. Co. v. Beckett (1895), 11 Ind. App. 547, said: “While there is some conflict of authority, the great preponderance of decisions appears to favor the right of the courts to direct conditionally the remission of a part of the damages in such cases where they deem them excessive.” Citing numerous cases. The opinion further states: “We are unable to see any good reason why the- trial court may not, if it believes the verdict right except as to the amount, in the exercise of a sound discretion, permit the plaintiff to elect whether he will remit part of the damages or suffer a new trial, and if the remittitur is made the question then is whether or not the damages thus reduced are excessive.” Manifestly the trial court carefully considered the evidence in reducing the amount assessed from $300 to $225. We cannot say that the evidence does not fairly justify the amount. In the case at bar, the trial court did not determine the quality of the verdict, but only that it was for an amount larger than the. evidence warranted. Whether the verdict was excessive, was contrary to law, or was not'supported by sufficient evidence, were questions for the court. It was held that while plaintiff was entitled to a verdict he was not entitled to an amount as large as that given. Giving to appellee the privilege of submitting to a new trial or remitting a part of the verdict was clearly within the decision of Cleveland, etc., R. Co. v. Beckett, supra. The reduction alone of the amount from $300 to $225 did not in any sense injure appellant nor deprive it of any legal right. It has the benefit of its exception and the right to a review of the ruling upon the motion for a new trial. Cleveland, etc., R. Co. v. Beckett, supra, is cited in Nickey v. Zonker (1899), 22 Ind. App. 211. It is not overruled, disapproved nor criticised. Nickey v. Zonker, supra, is dis51 languished from the case at bar. In that case the plaintiff sued defendant for the conversion of timber in logs. The jury returned a general verdict in favor of plaintiff for $400, and found by answers to interrogatories that plaintiff sold defendant a quantity of timber, defendant to cut the timber, and the logs to be measured and graded by both parties before being delivered by plaintiff and accepted by defendant. A dispute arose as to the measurement and grading of the logs, and defendant took them from the premises after he had been forbidden to do so. The jury found the amount of the timber cut, the prices defendant was to pay for the various kinds and grades of timber, and that defendant removed 25,942 feet or more thereof, but did not find the value of the timber taken. At the instance of the court, the plaintiff, pending a motion for a new trial, filed a remittitur for $277.17, and judgment was rendered against defendant for $122.83. The court say: “It appears from the special findings of the jury that the damages awarded in the general verdict were based upon a theory contrary to law — the theory that the appellee was entitled to recover for the full value of all the timber embraced in the executory contract of sale, where he was only entitled to recover the market value of the timber converted. While the whole quantity cut by the appellant Blucher, and the value of the various kinds, were found specially, the quantity, and grades of the timber taken away were not found, and the court could not ascertain the quantity and grades of the timber remaining and thereby arrive at a proper amount to be remitted, without deciding, upon conflicting evidence, a matter of fact, which, having been submitted to the jury, could not be determined by the court without invading the province of the jury. The burden was upon the appellee, the plaintiff, to establish the quantity and value of the property alleged to have been converted. It was no fault of the appellants that these matters were not found or proved, but they had the right to have them proved and decided by the [52] jury before any recovery against them. They never were decided by the jury.” In conclusion, the court say: “The verdict of the jury was contrary to law, and the unwarranted action of the court could not cure it of such defect. ’ ’ In the case before us the matters in issue were proved, and the verdict was not contrary to law. 6. Appellant' excepted to all the instructions given by the court of its own motion, being numbered from one to sixteen. Objection is pointed out to only one — number eleven. Appellee makes the point that the exception to the series of instructions was joint, and, as all the instructions are not shown to be bad, no available error is presented. We do not deem it necessary to decide this point. It is enough to say that we have read the instructions, and, taken together, they fairly state the law. We find no error. Judgment affirmed. Myers, C. J., Hadley and Watson, JJ., concur. Rabb, J., files concurring opinion. Roby, P. J., dissents.