dissenting.
There is no trial court error argued on appeal by the one appellant here, namely, the State of Indiana, which warrants setting aside the jury verdict against it. The Court of Appeals per Chipman, J., correctly stated:
"The State has raised the following issues:
1. Whether the trial court erred in not granting the appellants' motion for directed verdict.
2. Whether the trial court erred by admitting into evidence a Hobart City Court order.
3. Whether the trial court erred by admitting into evidence a photograph of the weighing station.
4. Whether the trial court erred in stating the Justice of the Peace was 'a representative of the State of Indiana' in the presence of the jury."
The motion for directed verdict and the memorandum attached to it do not disclaim the applicability of 42 U.S.C. § 1988 to any of the parties defendant. The motion simply tracks the language of Ind.R.Tr.P. 50, and alleges that as to Pleading Paragraph 2, the one alleging a violation of 42 U.S.C. § 1983 by the defendants, "the allegations of such paragraph are not supported by sufficient evidence, or a verdict on them in plaintiff's favor would be clearly erroneous as contrary to the evidence because the evidence is insufficient to support it." At the point during the trial, after the plaintiff completed its case-in-chief, when the trial court denied this motion as to the State, it was not called upon to decide whether or not the State as a matter of law was subject to the liability imposed by 42 U.S.C. § 1983. At that point the single question presented by the motion was "whether or not evidence introduced in behalf of the plaintiff, assuming it to be true, and considering as proved all facts which the evidence proves, or by legitimate inference tends to prove, establishes the plaintiff's case as laid." Smith v. Switzer, (1933) 205 Ind. 404, 186 N.E. 764. The particular motion at stake in the case before us served the office of a demurrer to the evidence at common law. Furthermore, the motion was not preceded during the pleading stages of the case by a motion pursuant to Ind.R. Tr.P. 12, a defense pursuant to Ind.R.Tr.P. 7, or any other motion in which it was contended that the State was not subject to liability through application of 42 U.S.C. § 1983. Indeed at no point before or during the trial did the State raise that legal defense. Consequently I can find no legal basis for a conclusion that the trial court committed an error in denying the motion for directed verdict.
There is likewise no basis in the remaining three issues for setting aside this verdict. The evidence of the Hobart City Court order and the photograph of the *683weighing station were admissible as relevant on the question of malice. There was no objection to the trial court remarks concerning the justice of the peace, and therefore their propriety is not before us.
On the basis of this appeal, I would affirm the trial court.
To this dissent it is helpful to add the observation that jury instructions are generally regarded as the means by which legal theories of liability and the manner of their proper application as well as such doctrines of respondeat superior are communicated to the jury. I cannot understand how this Court can consider whether a general verdict for the plaintiff and against a defendant can be set aside on the basis that it is the product of the application by the jury of a mistaken legal theory of liability or of the misapplication of a correct legal theory in the absence of an appellate challenge to jury instructions, the vehicles which finally determined and defined the applicable legal theories of liability and provided the jury with guidance in applying those theories. Here, there is no appellate challenge to the propriety of any jury instruction. This case was fairly tried on the facts at considerable cost to the plaintiff, and resulted in a jury verdict against one of the defendants. That party defendant has failed in demonstrating through the issues properly raised on appeal that the verdict is contrary to law.