Wabash Portland Cement Co. v. Evarts

Nichols, J.

Action by appellee alleging damages occasioned by appellant’s acts in obstructing a drain or ditch, causing water to overflow the lands of appellee thereby totally destroying the crop of onions growing thereon.

Upon issues formed by a general denial the cause was submitted to a jury for trial which returned a verdict for appellee for $4,000.

The only error assigned and upon which appellant relies for reversal is error of the court in overruling its motion for a new trial.

Appellant contends that the complaint is insufficient, but we give no consideration thereto as the question was not in any way presented in the lower court. Appellee contends that nothing is presented by appellant’s brief as to any question pertaining to the evidence for the reason that it affirmatively appears that all of the evidence is not in the record. The omitted parts are two exhibits, one a plat of the situation, and the other a letter from appellee’s attorneys informing appellant of appellee’s claim for damages. It is the general rule that Where a question presented depends upon the evidence, the' record should contain all of the evidence, but where there are questions to be decided that do not depend upon the omitted evidence, the rule does not apply. Shaffer v. Shaffer (1883), 90 Ind. 472; Van Vorhis v. Shannon (1884), 93 Ind. 97; Pavey v. Wintrode, Guardian (1882), 87 Ind. 379; Johnson v. Wiley (1881), 74 Ind. 233; The American Fire Ins. Co. v. Sisk (1894), 9 Ind. App. 305, 316, 36 N. E. 659; Cincinnati Seating Co. v. Neiry (1907), 40 Ind. App. 144, 81 N. E. 216. But questions as to whether the verdict is contrary to law, or as to whether the evidence is sufficient to sustain the verdict, or as to the amount of damages, which require a consideration of the evidence, will not be considered in the absence of any of it. Newcomer, Admr. v. Perril, Gdn. (1882), 83 Ind. 600; Central Union Tel. Co. v. State, ex rel. (1887), 110 Ind. 203, 206, 12 N. E. 136, 10 N. E. 922; Chicago, etc., R. Co. v. Eggers (1897), 147 Ind. 299, 45 N. E. 786; Royse v. Bourne (1897), 149 Ind. 187, 47 N. E. 827; Collins v. Collins (1885), 100 Ind. 266. Certainly we must not say that a plat which, as appellee says, and appellant does not deny, was made the basis of the testimony of his witness, the civil engineer, and that was used as the basis of many things described -in the testimony of appellee and other witnesses, was without influence in helping the jury to reach a proper verdict.

Appellant has assigned as a reason for a new trial that the damages are excessive, but has made no reference thereto in its points and authorities. It is true that it has challenged the court’s action in giving certain instructions pertaining to the measure of damages, and in refusing certain instructions tendered by it on the same subject, but it can make no difference as to the measure of damages used, if in the use thereof a right result is reached. Because of the failure of the bill of exceptions to contain all of the evidence, and because the question of excessive damages is not presented in appellant’s points and authorities, we do not consider the instructions as to damages.

Appellant complaint of the court’s action in overruling its objection to a certain statement made by appellee’s counsel as to changes made in the alleged obstructions after they had caused the injuries complained of. But we do not find this statement, or the objections thereto set out in appellant’s brief, except as a reason for a new trial. The question is therefore not presented. The same may be said with reference to certain evidence as to the overflow of lands above appellee’s lands. The objections of appellant, together with the court’s ruling thereon are not set out in appellant’s brief. Other questions pertaining to the evidence, and to certain instructions are discussed by appellant, but as they involve the sufficiency of the evidence, we do not consider them.

No reversible error is presented. Judgment affirmed.