On Petition for a Rehearing.
Coffey, J.An earnest petition for a rehearing has been filed in this cause, and an able brief filed by counsel, in which it is insisted that the court erred in holding that the special *417finding, set out in the opinion, was sufficient to warrant a judgment in favor of the appellants. It is claimed that the opinion is in conflict with the cases of Goldsby v. Robertson, 1 Blackf. 247; Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186 ; Dixon v. Duke, 85 Ind. 434; Louisville, etc., R. W. Co. v. Balch, 105 Ind. 93; Conner v. Citizens Street R. W. Co., 105 Ind. 62; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151; Buchanan v. Milligan, 108 Ind. 433; Western Union Tel. Co. v. Brown, 108 Ind. 538; Louisville, etc., R. W. Co. v. Flanagan, 113 Ind. 488; Louisville, etc., R. W. Co. v. Hart, 119 Ind. 273.
We have given each of these cases a careful consideration, and have reached the conclusion that they do not in any manner conflict with the conclusion heretofore reached in the ■case at bar.
They each support the conclusion reached by the court in this case in so far as it holds that the verdict under consideration is defective as a special verdict, but none of them lends any support to the contention of the appellee in this case.
It is conceded by the appellants that the verdict, as a special verdict-, is defective in finding generally on one of the issues in the cause instead of finding the facts in detail, but the controversy between the parties relates to the remedy for such defect, the appellants contending that unless the appellee seeks, in some legitimate mode, to set aside the verdict, the defect is waived ; while the appellee contends that the verdict should be treated as though the general finding on this issue was no finding at all.
It is firmly settled by the cases above cited that where the jury find matters of law only, such finding will be ignored, for in case of a special verdict it is the province of the court to deal with the law, and where the jury undertake to usurp the functions of the court, to the extent they do so their action will be treated as a nullity. But where the jury, acting within their special province, find a fact, though the *418fact be imperfectly stated in the verdict, the authorities cited do not support the position that the court will treat the finding of fact as a nullity, and render judgment as if no such fact had been found.
In the case of Goldsby v. Robertson, supra, this court, of its own motion, ordered the verdict set aside. In the case of Pittsburgh, etc., R. R. Co. v. Spencer, supra, a venire de novo was granted.
In the case of Louisville, etc., R. W. Co. v. Batch, supra, the jury returned a special verdict into which was injected a general verdict. The appellant in that case objected to the reception of the general verdict, and also movéd to strike it out. It also objected to a discharge of the jury until they should render a more perfect special verdict. These objections being overruled, the appellant moved for a venire de novo, which was overruled.
In relation to the questions thus raised this court said : “ We think that the court clearly erred in refusing to require the jury to perfect their special verdict, and in overruling-appellant’s motion for a venire de novo.”
In some of the cases cited, where a statement in the special verdict consisted of a mere conclusion of law, it was ignored, and in some a new trial was granted, but in none of them was the statement of a fact treated as a nullity because it was imperfectly stated.
In 3 Graham and Waterman New Trials, p. 1418, the discussion of the subject of special verdicts is opened with the following language : “A special verdict which does not.find the material facts in detail, can not be supported as such ; it must be set aside, and a new trial awarded.”
In this case the special verdict was received without objection. No effort was made to have the jury correct it; no motion was made for a venire de novo. The appellant does not seek a new trial, but seeks to treat a general finding on one issue in the case as a nullity.
He insists that the finding in question is a statement of a *419mere conclusion of law, and therein, we think, consists the error in one of the premises from which he draws his conclusion. The doctrine that a general verdict for a plaintiff embraces a finding in his favor of all the material allegations in the complaint is elementary. So we think the general finding for the appellant on one issue embraces all the facts involved in that issue.
Filed June 9, 1891.The defect in the special verdict under consideration does not consist in a failure to find all the facts necessary to authorize a judgment for the appellant, but it consists in finding the facts as to one issue generally and not specially. As the appellee has not sought to have the verdict set aside for this defect it is our duty to give it force, if that can be done.
“ ‘ The court will work the verdict into form and make it serve.’ For verdicts are to have a reasonable intendment, and to receive a reasonable construction, and are not to be avoided unless from necessity, originating in doubt of their import, or immateriality of the issue found, or their manifest tendency to work injustice.” 1 Graham and Wat. New Trials, 160; Chambers v. Butcher, 82 Ind. 508.
As all the parties are content to permit this verdict to stand in its present condition, and as it is not defective in failing to find any facts necessary to a recovery by the appellants, we think the court should sustain the motion of the appellants for judgment in their favor, and that the petition for a rehearing should be overruled.