Bailey v. Kain

• Citation: 135 Ind.App. 657,192 N.E.2d 486
• Decision Date: 17 September 1963
• Docket Number: No. 19562,19562
• Parties: William (Bill) BAILEY, Appellant, v. Iris I. KAIN, Appellee.
• Court: Court of Appeals of Indiana

Page 486

192 N.E.2d 486

135 Ind.App. 657

William (Bill) BAILEY, Appellant, v. Iris I. KAIN, Appellee.

No. 19562.

Appellate Court of Indiana, In Banc.

Sept. 17, 1963.

Rehearing Denied Nov. 7, 1963.

McLaughlin & Barker, North Judson, Kizer & Neu, Plymouth, for appellant.

Paul Reed, Knox, for appellee.

HUNTER, Judge.

This action was filed by the appellee, Iris I. Kain, plaintiff below, against the appellant, William (Bill) Bailey, defendant below, to recover damages for the loss of services of Rosa Mae Bailey, (no relation of appellant), a minor child of appellee, who was killed as a result of an automobile collision in Starke County.

The cause was tried by a jury and the jury found for the appellant (defendant below) and against the appellee (plaintiff below). The trial court entered an appropriate judgment on the verdict of the jury. In due time the appellee (plaintiff below) filed her motion for a new trial.

The trial court sustained the motion for the new trial and entered its judgment on said motion as follows:

'Come now the parties by counsel and the plaintiff's (appellee herein) motion for new trial is presented.'

'The court having heard the matter and being duly advised, now sustains the said motion and grants a new trial of this cause.'

The appellant in his assignment of errors among other reasons contended that the trial court erred in sustaining appellee's motion for a new trial citing § 2-3201, Burns' 1961 Replacement (Cumulative Pocket Part).

(b) 'A ruling or order of the court granting a motion for a new trial shall be deemed to be a final judgment, and an appeal may be taken therefrom.'

Notwithstanding the fact that the appellant (defendant below) made no motion in the court below requesting the trial judge to state in writing his specific reasons for sustaining the appellee's (plaintiff below) motion for a new trial, we nevertheless stated that we were of the opinion that it was necessary that the trial judge do so.

We therefore held that in order to further the orderly administration of justice and to establish good practice this cause should be remanded to the trial court and, accordingly in aid of our appellate jurisdiction, we temporarily held the determination of this cause in abeyance and remanded it to the trial court with instructions. (See Bailey v. Kain (Ind.App.1963), 187 N.E.2d 366.

The trial judge in compliance with said instructions made an entry on the Pulaski Circuit trial court docket and the court's entry was properly certified by the clerk of said court back to this court.

The trial judge's statement contained three reasons for sustaining the appellee's (plaintiff below) motion for a new trial.

Stated reasons filed by the trial judge are as follows:

(1) 'Under Specification 1 of the motion for new trial the trial court, after weighing all of the evidence, was and is of the opinion that the verdict of the jury was against the clear preponderance of the evidence, such preponderance of the evidence being in favor of the plaintiff below (appellee) and against the defendant below (appellant). The trial court therefore exercised its prerogative as the thirteenth juror in sustaining the motion for new trial.'

(2) 'Under Specification 3 the trial court was and is of the opinion that an error was committed by permitting the defendant below (appellant) to ask of the witness Royce Fleener the question, 'Using your past knowledge of damages to automobiles what did this damage indicate to you,' and permitting said witness to answer said question.'

(3) 'Under Specification 4 of the motion for new trial, the trial court was and is of the opinion that there was error in permitting the defendant below (appellant) to introduce in evidence Defendant's Exhibit A, being a certified copy of the driving case history of Robert Sharpe, certified to by the Indiana Bureau of Motor Vehicles.'

If any of the three stated reasons set forth by the trial judge are correct, this court would be duty bound to affirm the lower court's decision. Newsom v. Pennsylvania Railroad Company (Ind.App.1962), 186 N.E.2d 699; Rans v. Pennsylvania Railroad Co. (1962), 133 Ind.App. 592, 181 N.E.2d 644, 184 N.E.2d 37.

It therefore becomes the sole duty of this court to examine the record to see if (1) the trial court abused its judicial discretion (2) a flagrant injustice has been done the appellant, or (3) a very strong case for relief from the trial court's ordering a new trial has been made by the appellant. Newsom v. Pennsylvania Railroad Company, supra; Topper v. Dunn (1961), 132 Ind.App. 306, 177 N.E.2d 382; 4 Works' Indiana Practice, Lowe's Revision, § 61.140, p. 120.

With the above rules in mind, we therefore first consider stated reason #1 of the trial judge's stated reasons for sustaining the appellee's (plaintiff below) motion for a new trial.

On consideration of a motion for a new trial, the trial judge has an imperative obligation to weigh the conflicting evidence. Novak, Admx., etc. v. Chicago & C. Dist. Tr. Co. et al. (1956), 235 Ind. 489, 135 N.E.2d 1; Hinds, Executor, etc. v. McNair et al. (1955), 235 Ind. 34, 129 N.E.2d 553; State ex rel. Conner v. Pritchard, Judge (1944), 115 Ind.App. 55, and cases cited at p. 59, 54 N.E.2d 283 at pp. 284-285; Bell v. Bell (1940), 108 Ind.App. 436, 29 N.E.2d 358; Borenstein, Admr. v. Uhl (1939), 107 Ind.App. 67, 20 N.E.2d 189.

On a motion for a new trial it must clearly appear to the trial judge that substantial justice has been done and, if in his opinion the preponderance of the evidence is against the verdict, it is his duty to grant the new trial. Christy v. Holmes (1877), 57 Ind. 314; Glover et al. v. Stevenson et al. (1891), 126 Ind. 532, 26 N.E. 486; Smith v. Stump, by Next Friend (1895), 12 Ind.App. 359, 40 N.E. 279; Monfort v. Indianapolis, etc., Traction Co. (1920), 189 Ind. 683, 128 N.E. 842; Lowry v. Indianapolis Traction, etc., Co. (1920), 77 Ind.App. 138, 126 N.E. 223; Novak, Admx., etc. v. Chicago & C. Dist. Tr. Co. et al., supra; Hinds, Executor, etc. v. McNair et al., supra; State ex rel. Conner v. Pritchard, Judge, supra and cases cited at p. 59 of 115 Ind.App., at pp. 284-285 of 54 N.E.2d.

We will be hesitant to overrule a trial court in granting a motion for new trial for the reason that there are strong presumptions in favor of the trial court's action, and it is therefore a sound precedent which dictates that this court should be reluctant to second guess a trial court in granting a motion for new trial. State ex rel. Conner v. Pritchard, Judge, supra; Indianapolis & Cincinnati Traction Co. v. Harrell (1922), 192 Ind. 188, 134 N.E. 871; Lewis v. State (1894), 137 Ind. 344, 36 N.E. 1110; Novak, Admx., etc. v. Chicago & C. Dist. Tr. Co. et al., supra; Powell v. Grimes (1856), 8 Ind. 252; Cronk v. Cole (1858), 10 Ind. 485; Leary v. Ebert et al. (1880), 72 Ind. 418; Topper v. Dunn, supra, and cases too numerous to cite further.

The trial judge is more than a mere umpire; his duties extend beyond the bounds of confining the evidence to the issues and instructing the jury on the law of the case it was his duty to hear the case along with the jury; he had the opportunity to see and know the jury; ¹ he had the duty to observe the witnesses and note the level of their intelligence and wisdom together with their independence or lack of it, their prejudice or lack of it concerning matters about which they testified, and to note their bias or prejudice, their interest or lack of interest. In short, it was his duty to keep his eyes and ears open to what was going on during the trial so that when confronted with a motion for a new trial, he could pass upon the purely legal questions involved in the case, as well as determine the weight and sufficiency of the evidence to sustain the verdict. There are many things the trial judge must take in consideration in determining the weight of conflicting evidence and passing upon the question of the preponderance thereof which make his duty in the first instance entirely different from that of an appellate tribunal as a court of review, ² for at the appellate level we have only the record and briefs exemplified by the cold type before us. Hinds, Executor, etc. v. McNair et al., supra, and cases cited. Re trial courts' duty to weigh conflicting evidence, credibility of witnesses, etc., see also Cleveland, C., C. & St. L. R. Co. v. Baker (1920), 190 Ind. 633, 128 N.E. 836; Cincinnati, Hamilton & Indianapolis Railroad Co. v. Madden (1893), 134 Ind. 462, at p. 469, 34 N.E. 227, at p. 229; State ex rel. Conner v. Pritchard, Judge, supra; Christy v. Holmes, supra; George H. Hammond & Co. v. Schweitzer (1887), 112 Ind. 246, 13 N.E. 869; Cleveland, C., C. & St. L. R. Co. v. Baker, supra; Borenstein, Admr. v. Uhl, supra; State ex rel. Winslow v. Fisher, Clerk (1941), 109 Ind.App. 644, 37 N.E.2d 280; State ex rel. Conner v. Pritchard, Judge, supra; Indianapolis & Cincinnati Traction Co. v. Harrell, supra; Chicago & E. R. Co. v. Rans (1927), 86 Ind.App. 300, 154 N.E. 876; Lewis v. State, supra.

The appellant contends that the trial court failed to state with particularity its specific reasons for granting the motion for new trial under stated reason #1 filed herein which reads as follows:

'The trial court, after weighing all of the evidence, was and is of the opinion that the verdict of the jury was against the clear preponderance of the evidence, such preponderance of the evidence being in favor of the plaintiff below (appellee) and against the defendant below (appellant). The trial court therefore exercised its prerogative as the thirteenth juror in sustaining the motion for new trial.'

In view of the cases cited hereinbefore, it seems conclusive to this court that stated reason #1 of the trial judge is entirely adequate and meets this court's mandate heretofore issued to state with particularity its specific reasons for granting a motion for new trial. In this case the evidence relative to the...