Dissenting Opinion.
Hottel, J.I cannot concur in that part of the majority opinion in this case expressed in the following words: “In deciding whether or not the general verdict is sustained by the evidence, the facts found by way of answers to interrogatories will he treated the same as though they were established by the undisputed evidence, unless some of the facts so found are unsupported by any evidence.”
*430I dissent from this declaration, because I believe
(1) that it is wrong in principle;
(2) that it gives to the answers to such interrogatories an effect and influence upon and against the general verdict not provided or contemplated either by the letter or spirit of §§572, 573 Burns 1908, Acts 1897 p. 128, §1 and §547 R. S. 1881, which alone furnish the right to propound such interrogatories and define the influence and control the answers thereto shall have upon the general verdict;
(3) that it violates thoroughly established and universally recognized principles long ago announced by the Supreme Court, and continuously followed by that court and this court, without question and without change or modification. Said announcement is wrong in principle, because it, in effect, declares that this court, in determining whether there is any evidence to sustain the verdict, shall be governed, not by its own investigation of the evidence and its independent judgment based thereon, but, to the extent that the jury has expressed its opinion on the subject of the weight of the evidence in the answers to interrogatories, where there is any evidence to support such opinion, this court shall adopt it, and be controlled thereby. Such announcement, in our opinion, confuses two essentially different subjects, viz.: the evidence in the case, and the finding of the jury as to what the evidence shows.
When the court is called upon to determine what the special finding of the jury is upon the facts submitted to it by the interrogatories, it necessarily determines said question from the answers to such interrogatories, independent of and regardless of what the evidence may show upon such subject. Upon the other hand, when such court is called upon to determine whether the verdict is sustained by sufficient evidence, it should look to the evidence alone and give no thought or attention to any finding the jury may have made upon any of the facts to which such evidence was addressed.
*431That we should look to the evidence alone in determining its sufficiency to sustain the general verdict is, we think, made evident by the manner and the language in which the question is presented to the court for its consideration. This question is presented to this court in one way only: by assigning as one of the grounds for a motion for new trial that “the verdict is not sustained by sufficient evidence,” not that “said verdict, when considered in connection with the answers to interrogatories, is not sustained by the evidence.” Can it be said that this court can determine whether there is any evidence to sustain the several essential facts which the general verdict finds to be true, by looking to see how some other tribunal has determined the question of the preponderance of the evidence as to some or all of such independent facts ? Shall the conscience and judgment of this court in determining said question be influenced or controlled in whole or in part by the conclusion of some other tribunal on a different question? Can this court say, under its oath, that there is no evidence to sustain the verdict, simply because a jury has said the preponderance of the evidence is against the verdict?
In this connection it is important to keep in mind the difference between the question which this court is called upon to determine and that which the jury is called upon to determine by its answers to interrogatories. This court determines simply whether there is any evidence to support each material fact represented-by the general verdict, while the jury is called upon to say in its answer to each interrogatory propounded to it, which way the evidence preponderates as to such particular fact inquired about. If the judgment and conscience of this court is to be bound and controlled by the judgment and conclusion of some other tribunal, it should at least be confined to the same question passed upon by such other tribunal.
We said also that the rule declared by the majority opinion violates the letter and spirit of the sections of the statute *432providing for interrogatories to the jury, and for motion for judgment thereon. Section 572, supra, is as follows: ‘ ‘ That in all actions hereafter tried by a jury, the jury shall render a general verdict, but in all cases when requested by either party, the court shall instruct them when they render a general verdict to find specially upon particular questions of fact to be stated to them in writing in the form of interrogatories on any or all the issues in the cause, and this shall bé the only form of verdict submitted to or rendered by the jury in the cause: Provided, The provisions in this section shall not apply to cases in equity. These interrogatories are to be recorded with the verdict.” Section 573, supra, provides that “when a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” These provisions of the statute indicate the sole and only purpose of such interrogatories, and that is, that they may be submitted by a party desiring a special finding upon any particular facts within the issues, and the jury may be required to answer them and return them with its verdict, to the end, only, that if there be irreconcilable conflict between such answers and the general verdict, such answers will control, and the court must give judgment thereon.
They owe their existence to statutory enactment; and their pui'pose and the scope of their application is defined and limited thereby. There is no provision for their consideration in connection with the evidence, and such consideration is neither within the spirit nor letter of said sections.
We have said, also, that said rule declared by the majority opinion herein violates well-established principles announced by the Supreme Court and this court. Upon this contention we submit that in determining whether the verdict is sustained by sufficient evidence, the Supreme Court and this court have so frequently said, and repeated in one form of expression and another, that if there be any evidence to support each of the material averments of the pleading, upon *433which such general verdict is based, that such verdict will not be disturbed by the appellate tribunal, that to furnish a complete list of such decisions would be the equivalent of enumerating all the cases that have come to said courts since their organization, which contain a presentation .of the question of the sufficiency of the evidence to sustain the verdict. If, however, the rule announced in the majority opinion is to obtain, then the former declarations of said courts must be completely changed and modified, and instead of saying, as heretofore, that “if there be any evidence to support the several averments of the pleading upon which the general verdict rests, such verdict will not, be disturbed by the appellate tribunal,” both courts must now say: “If, after subtracting from the evidence that part covered by the facts upon -which the jury by its answer to interrogatories found against such general verdict, there be-any evidence left to support each of the material averments of the pleading upon which such verdict.rests, it will not be disturbed by such court.”
Again, both courts of appeal of this State, as well as the courts of other jurisdictions which have statutes controlling said question similar to our own, have declared that every presumption is indulged in favor of the general verdict.
In fact the general verdict has, by the Supreme and Appellate courts, always been treated as a finding upon every essential averment of the pleading upon which it rests, just as much as the answers to interrogatories are treated as findings upon the particular facts found by such answers, with the presumption always in favor of the finding of the general verdict, except when it is being considered upon the question of whether it shall stand as against a motion for judgment on the answers to interrogatories, and then, by reason of the statute giving such answers the preference, the general verdict must yield, where there is irreconcilable conflict between the two. Such presumption in favor of the general verdict *434can no longer exist, if the rule announced in the majority opinion is to obtain.
Barring the errors of law that may be carried into a general verdict, there are but two ways of attacking it: (1) By the ruling on the motion for judgment on the answers to the interrogatories; (2) by a motion for a new trial, on the ground of the insufficiency of the evidence. Upon the first ground, if the answers to the interrogatories are in irreconcilable conflict with the general verdict they must prevail, and the general verdict be set aside. In such ease the answers to the interrogatories are given the preference by virtue of the statute providing for the motion for judgment on such answers.
Under the old rule so often announced by the Supreme Court and this court, when a consideration of the evidence was reached, the general verdict was taken as a conclusive finding upon every averment of the pleading upon which it rested that had any evidence for its support. But, under the announcement before made, no such presumption is to be indulged, and in considering the evidence the court now; instead of determining for itself whether there is any evidence to support each averment of the pleading upon which the general verdict rests, must look to the answers to interrogatories, and must ascertain what is left to support the general verdict after giving such answers the preference as to all facts adverse to the verdict covered by such answers upon which there was any evidence.
So in each of the only two ways of attacking the general verdict, instead of indulging every presumption in its favor, we have, in each instance where there was conflict, given the answers to interrogatories the preference, and required the general verdict to yield. The only correct form of expression hereafter upon the subject of presumption, in connection with the general verdict, if the announcement by the majority of the court is to obtain, must be: Upon a motion for judgment on answers to interrogatories, where there is *435irreconcilable conflict between such, answers and the general verdict, which is a finding upon all the essential facts of the pleading or pleadings upon which it is based, the answers to interrogatories, by virtue of the statute upon which such motion is based, must control, and the general verdict yield thereto. And when such general verdict is being considered with a view of determining whether it, is sustained by the evidence, such interrogatories must be again considered, there being now no presumption in favor of such general verdict except that it is a finding on all the essential facts of the pleading or pleadings, upon which it rests subject to the condition that as to all such facts found by the answers to interrogatories such answers have in their favor not merely a presumption, but where they have any evidence for their support they shall control such general verdict.
We recognize that it may happen, but rarely we think, that injustice may result from the application of the present rules relating to questions presented by the motion for judgment on the answers to interrogatories, and the sufficiency of the evidence, and that it was to avoid such results that the announcement by the majority of the court was made. The hardship which it is proposed to remedy by the majority opinion is such as may result where there are two or more paragraphs of complaint. To illustrate: In such a case, a motion is made for judgment upon the answers to interrogatories. This court finds, in considering such motion, that it is in irreconcilable conflict with a verdict predicated upon any paragraph but one. Under the rule, as frequently announced by the Supreme Court and this court, we must presume that the general verdict finds each essential fact of each of said paragraphs to be true, and we therefore overrule the motion for judgment on such answers. Then when we reach the motion for a new trial we find that there is a total lack of evidence to sustain the paragraph, which we were required to assume as proved in considering the motion for judgment on the answers to interrogatories, but we find *436that there is evidence to sustain the paragraphs which we found were defeated by the answers to interrogatories.
Apparent inconsistency results in such case from refusing to sustain the motion for new trial on the ground that there is evidence to sustain those paragraphs which we have before said were defeated by the answers to interrogatories. It was doubtless to avoid such inconsistency, and the apparent injustice that may result therefrom, that the majority of the court was led to make the announcement it did.
No legal principle or rule of human conduct can be absolutely perfect. Occasional hardship results from the most perfect rules that the ablest jurists of the world have been able to formulate. That a situation should result, of the character assumed for the illustration given, necessitates the assumption that both the jury and the trial court shall violate their sworn duty, and the violation on the part of one or both must be with knowledge.
It is hardly possible to make rules that will meet every emergency of this character, but conceding that the assumed condition is one which should not occur, it must be conceded that it is better to prevent error, than to make and then attempt to correct it. The right is never best obtained by committing two wrongs.
The supposed condition and hardship resulted not from any erroneous assumption in considering the sufficiency of the evidence. The whole trouble, if any, resulted in the consideration of the motion for judgment on the answers to interrogatories, and in the assumption indulged, that the verdict was a finding that every material averment of each paragraph of the complaint was proved, in the face of the evidence in the record to the contrary.
"We know, as a matter of fact, that such assumption was inconsistent with the law controlling the jury in reaching its verdict, because we know, as a matter of law, that the verdict was not required to be upon all of the paragraphs of the complaint, but, upon tire contrary, that the trial court, *437if requested to do so, was required to tell the jury that a finding upon any one of the paragraphs was sufficient to warrant a verdict for the plaintiff.
It is evident, therefore, that the apparent error and hardship, resulting in the assumed case, was due to the erroneous assumption of the court in the first instance that the general verdict was a finding in favor of the plaintiff upon every material averment of each of the paragraphs of his complaint when the evidence was before the court that showed conclusively that such verdict could not rest upon one of the paragraphs thereof.
The assumption indulged by the court that such verdict was a finding in plaintiff’s favor on each of the paragraphs, while in contradiction of the principle of law which the trial court must have announced to the jury directing it to find for the plaintiff, if he had proved either paragraph of his complaint, is, nevertheless, supported by numerous other decisions of the Supreme Court and the Appellate Court, which hold, in effect, that in considering a motion for judgment on the answers to interrogatories such courts will look only to the pleadings, the general verdict and the answers to interrogatories.' City of Jeffersonville v. Gray (1905), 165 Ind. 26; Consolidated Stone Co. v. Summit (1899), 152 Ind. 297; Indiana R. Co. v. Maurer (1903), 160 Ind. 25.
The correctness of the rule laid down in these eases cannot be questioned when applied to a case where the evidence is not in the record, and for the same reason we think the court, in considering the sufficiency of the evidence to sustain the verdict, should be limited to the evidence alone. Where, however, the court has the evidence before it, by which it can know that the verdict in fact rested upon only a part of the paragraphs of the complaint, a more serious question arises, and whether, when considering the motion for judgment on the answers to interrogatories, the rule, indulging the presumption that the verdict is a finding on each of ■the material averments of each of the paragraphs of the *438pleading- upon which it is based, should he limited in its application so as to apply only to cases where the evidence is not in the record, and cases where the attention of the court is not called to the absence of proof upon any particular paragraph or paragraphs, is a question open to doubt.
In this connection we suggest that the uniformity of the decisions as to the wisdom of each of said rules, and their long-continued application without modification or change, suggest caution in the matter of any such change or modification of either, and this is especially true in view of the very exceptional eases in which they work any even apparent hardship.
We do say, however, that to us it seems the part of wisdom that if any correction or change is to be made we should go back to the source of the apparent error, and refuse to commit it in the first instance, rather than violate long-settled and well-established principles, by refusing to give to the general verdict and the evidence the importance heretofore attached to them, and thereby, in the effort to correct the apparent error, commit another that will, in our judgment, be more far-reaching in its scope and extent than the one attempted to he corrected.
Felt, J., concurs iu dissenting opinion.