The opinion
On Petition for a Rehearing.
Hackney, J.
The first question argued upon the petition for a rehearing is that the judgment is excessive. Counsel are in error in the assumption that this question was argued either in the briefs or the oral argument upon the original hearing upon any other theory than that no recovery could be sustained for the building and tearing down of the first substructure. However, if we believed *647 that the recovery was excessive, we would not incline to stand upon the. technical rule of practice and deny the reduction to a proper amount, but we have considered the question, and find that if we were right in the holding that it was proper to permit a recovery for extra work and materials in tearing down the first work and constructing the second, the verdict for $11,314.94 was authorized by the evidence, if we include $258.51 for interest from the completion of the work until the finding by the jury. A calculation discloses that the sum so included, probably as interest, was not excessive, but was at six per cent, for a shorter period than was allowable. An error into which appellants seem to have fallen is in assuming that the theory of the complaint adopted the report of the superintendent upon the completion of the second structure. If the complaint had so proceeded, the recovery might have been excessive.
Again it is insisted that the superintendent had no power to direct the tearing down of the first substructure, and the building of another at the expense of the counties. It is conceded, however, that under the authorities cited in the original opinion, such power existed where the work was that of a single county, but it is said that there is such difference between the statutes relative to the appointment and powers of superintendents, where the work is by one county or by two or more counties, that the authorities so cited do not apply here. The statutory provision for the appointment of superintendents by one county is as follows: “For the erection of any such bridge, the said board may appoint one or more discreet persons as superintendents thereof.” R. S. 1881, section 2888. While that for the appointment of superintendents for the two counties is as follows: “It shall be the duty of said boards of county commissioners, while in joint session, to appoint one or more persons as *648 superintendents, who shall have full control and supervision of the erection and repair of said bridge, subject, however, to such regulations as such boards of county-commissioners may determine upon.” R. S. 1881, section 2881. It is apparent that the extent of power is not indicated by the first quoted provision, while by the second it is indicated that he shall have “full control and supervision,” unless restrained by some regulation of the boards. We have no doubt that this limitation should also be implied from the first of these provisions, and that if any substantial difference exists between the two it is in favor of the second, where the greater difficulty lies in getting together the members of the two boards. The rules and regulations under which the boards of two counties may build bridges are the same as those under which one county may build, as expressly provided in section 2880, R. S. 1881. The authorities, therefore, sustain the construction given the action of the superintendent by the original opinion.
It is insisted that we should have ordered a new trial upon discovering that the answers to interrogatories were conflicting, and to this insistence are cited Staser v. Hogan, 120 Ind. 207 , and the Chicago, etc., R. R. Co. v. Kennington, 123 Ind. 409 . The character of the cases cited is best made known by the following from the latter: “The rule upon which this court proceeds is, that if the general verdict is supported by the evidence, a motion for a new trial will be overruled, which assigns as a reason that it is not so supported, without regard to the manner in which interrogatories may be answered. Staser v. Hogan, supra. If it were found that answers to interrogatories were inconsistent with each other, and were not supported by the evidence, the fact might be influential in inducing the court to grant a new trial in order to prevent a failure of justice. It *649 is possible that a case might arise in which there would be such a manifest repugnancy between the answers to interrogatories aS to indicate a disposition on the part of the jury to distort the evidence in order to make a case favorable to one party or the other. Where answers to interrogatories, fairly put, make such a purpose clearly apparent, there are authorities of great weight which hold it to be the duty of the court to set the verdict aside and award a new trial.” The conflict here is suggested in the original opinion, and is not such as to make manifest such disposition on the part of the jury.
Filed April 6, 1894.
Other questions' are discussed, but were fully considered and passed upon in the original hearing.
The petition is overruled.