On Petition for Rehearing
Kelley, J.Appellee’s petition for rehearing, in addition to claiming that we erred in holding that the Bill of Exceptions containing the evidence is a part of the record, asserts that we erred in holding that the jury’s verdict, as rendered, was contrary to law and that in doing so we contravened a ruling precedent of the Supreme Court, to-wit: McCague v. N. Y. C. & *239St. L. R. Co. (1947), 225 Ind. 83, 71 N. E. 2d 569, 73 N. E. 2d 48.
The ease cited and relied on by appellee was a negligence action for personal injuries and automobile damages resulting from a crossing accident. The appellant, in that case, claimed that the last instruction given by the court should have included a “form of verdict” applicable to the second paragraph of complaint as well as the one tendered for use in regard to the first paragraph. The court, in the McCague case, held that if appellant desired a form of verdict for the permissive use of the jury with regard to the second paragraph of complaint, the appellant should have offered it. From this, appellee argues that the appellants, in the instant case, did not tender “such .form for the permissive use of the jury” and, therefore, we erred in holding in the main opinion, that the verdict was contrary to law because the jury did not find on each separate cause of action as required by §2-304, Burns’ 1946 Replacement.
Acts 1943, ch. 227, §1, §2-305, Burns’ 1946 Replacement, took effect November 3, 1943, and the complaint in the McCague case was filed January 28, 1944. Although not so stated in the opinion, it sufficiently appears from the -record thereof that both “such elements” of damages (personal-injury and property) claimed by the appellant in that action to have resulted from appellee’s alleged negligence were united under the authorization of said statute. Said statute, §2-305, contained no provision requiring the jury by its verdict to designate the finding on each separate cause of action, as does said §2-304, Burns’ 1946 Replacement, pursuant to authorization of which appellee’s causes of action were united in one complaint in the cause before us.
*240It follows, then, that the McCague case relied upon by appellee, is no authority for her said contention in the rehearing petition, and that we have not contravened a ruling precedent, as contended by appellee.
Appellee, this time relying upon the opinion on the rehearing petition in said McCague case, says we contravened said authority when we said in the main opinion that we were not required to close our eyes to errors apparent upon the record before us. Appellee quotes extensively from said rehearing opinion on the question of the requirement of compliance with the rules. The court stated that it would be a violation of the rules to determine questions not raised and that no error with respect to the giving of instructions is available except upon specific objections made thereto.
Such was not the principle applicable to the matter we decided. In the record before us in the appealed cause we decided that the verdict upon which the judgment for appellee was rendered did not conform to the statutory requirement. Appellants specified in their new trial motion that the verdict was contrary to law. The record disclosed that the verdict did not designate the finding on each separate cause of action as was made mandatory by the statute. Therefore, in our opinion, we conceived the verdict to be contrary to law. The deficiency was not just a matter of form as appellee seems to contend. Rather, there was an entire failure to comply with the specified legal requirement. That failure went to the substance, not just the form. And we cited the insufficiencies in the evidence, not for the purpose of deciding whether the verdict was sustained thereby, but to illustrate the danger of the failure to meet the demands of the statute.
*241There is nothing in the case cited and relied upon by appellee which makes our holding, under the circumstances mentioned, a contravention of the principle there enunciated. Our courts, of course, cannot and will not apply or refuse to apply the rules of court in such fashion as to favor one litigant over the other. But when the very verdict itself is in bold resistance to the mandate of the statute, and we observe and know that such is the fact, do we not, by ignoring the palpable error, thereby grant a precedent, in favor of appellee, upon which future error of the same kind and magnitude may be rested with impunity? If the function of our courts be no more potent than appellee suggests then, indeed, has justice, as judicially administered, become ready for a new and diverse appellation.
With respect to our holding that the Bill of Exceptions containing the evidence was a part of the record, appellee urges nothing additional to that contained in her answer brief. Thus, in that regard, we perceive no reason made apparent by appellee which leads to an alteration of our opinion, as announced.
In her brief in support of her petition for rehearing, appellee indulges in points not asserted in her petition. Therefore, we find no compulsion-for considering such points.
The petition for rehearing is denied.
Royse, J., holds petition should be dismissed for non-compliance with the rules of the court.
Note. — Reported in 125 N. E. 2d 827.
Rehearing denied 127 N. E. 2d 128.