Borowski v. Rupert
Citation | 152 Ind.App. 9,281 N.E.2d 502,30 Ind.Dec. 435 |
Decision Date | 25 April 1972 |
Docket Number | No. 1171A248,1171A248 |
Court | Court of Appeals of Indiana |
Parties | Claude BOROWSKI, Defendant-Appellant, v. Robert P. RUPERT b/n/f John P. Rupert, Plaintiff-Appellee. |
Robert J. Konopa, Terry V. Lehr, Crumpacker, May, Levy & Searer, South Bend, for defendant-appellant.
John R. Obenchain, Roland Obenchain, South Bend, for plaintiff-appellee.
This is an appeal from the granting of a new trial on the sole and limited issue of damages subject to additur in the sum of $2,500.00. Robert P. Rupert, age eleven years, was a passenger on a Honda motorcycle traveling in a southerly direction on Michigan Road in St. Joseph County, Indiana. Claude Borowski was traveling in a northerly direction on Michigan Road and turned west at the intersection of Michigan Road and Ireland Road. His automobile crossed the center line and collided with the motorcycle upon which Robert P. Rupert was a passenger. The jury returned a verdict for Robert P. Rupert and awarded him damages in the amount of $500.00. Robert P. Rupert filed a motion to correct errors based upon the inadequacy of the damages granted by the jury. The trial court granted a new trial on the single issue of damages or in the alternative, an additur which provided that Claude Borowski could pay an additional $2,500.00 which would make the total award of damages to Robert P. Rupert $3,000.00. Claude Borowski is appealing from this order of the trial court granting a new trial on the single issue of damages subject to additur. 1 We affirm the action of the trial court in the opinion which follows:
Claude Borowski presents two contentions in support of his appeal to this court:
1. The Thirteenth Juror Principle under which the trial court acted is unconstitutional. He further contends that if the Thirteenth Juror Principle is constitutional, it should be limited in its scope and application. He suggests that the trial court abused its discretion in applying the principle of the Thirteenth Juror in the present case.
2. Limiting the new trial to the single issue of damages is error. He further contends that liability was not 'definitely established in favor of the plaintiff.' His second reason offered for not limiting the new trial to a single issue is 'Under the facts of this case, it would be obviously unfair and inequitable to limit any new trial to the sole issue of damages.'
The historical development of the jury system in Anglo-American jurisprudence and our own constitutional history is not kind to Claude Borowski's first contention. 2 He has chosen to express his first contention as follows:
'The 'thirteenth juror' principle unquestionably does adversely affect the substance of the right of Indiana citizens to a trial by jury, however, and it is, therefore, unquestionably unconstitutional. The 'thirteenth juror' principle has been described in detail by the Appellate Court case of Bailey v. Kain (1963), 135 Ind.App. 657, 192 N.E.2d 486, in the following fashion:
'On a motion for a new trial it must clearly appear to the trial court 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 . . . 192 N.E.2d, at 488.
'. . . (I)f in the judge's opinion, the evidence preponderated against the verdict of the jury it is his duty to grant a new trial for the party seeking such relief . . ..
When closely viewed, it is readily apparent that what the Indiana constitution grants with respect to the right of a trial by jury in civil cases, the upper courts in the State of Indiana have taken away. When trial courts are empowered to review evidence submitted at trial and, through the use of the same standard of proof applicable to the jury's determination of the issues, is further empowered to overrule the jury's verdict, then Indiana courts have not reasonably regulated the constitutional right to trial by jury but have substantially impaired that right. Obviously, a judge who merely disagrees with the jury, particularly with respect to the damage portion of a verdict in the plaintiff's favor, can, under present Indiana upper court interpretations of Article I, Section 20 of the Indiana Constitution, order a new trial even though, as here, the question of what the damages were is completely subjective, and reasonable people could conflict in their determination of a fair damage award. Upon the case being retried, should another verdict be rendered by the jury in an amount comparable to the verdict rendered by the first jury, the same trial judge may again overrule that jury's verdict, and continue to overrule each subsequent jury's verdict until, finally, he finds a jury which agrees with his opinion of the case. This, it is submitted, is a trial by the court rather than a trial by the jury.'
Knowledge of the common law right of trial by jury at the time of the adoption of the Indiana Constitution is necessary; otherwise, each of us may have a preconceived idea of a right to trial by jury which has no relationship or similarity to the common law right of trial by jury as set forth in § 20, Art. 1 of the Constitution of Indiana which provides that:
'In all civil cases, the right of trial by jury shall remain inviolate.'
Our Indiana Supreme Court has said of this right to jury trial that:
'This provision of the constitution was adopted in reference to the common-law right of trial by jury, as the language plainly imports, namely, that the right 'shall remain inviolate,' that is, continue as it was.'
In Gasoline Products Co. v. Champlin Refining Co. (1931), 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188, the Supreme Court of the United States had the identical question on damages argued before it. The interpretation of the Seventh Amendment was argued as follows:
'It is argued that as, by the rules of the common law in force when the amendment was adopted, there could be no new trial of a part only of the issues of fact, a resubmission to the jury of the issue of damages alone is a denial of the trial by jury which the Amendment guarantees.'
Answering this argument, the Supreme Court said:
'It is true that at common law there was no practice of setting aside a verdict in part. If the verdict was erroneous with respect to any issue, a new trial was directed as to all. This continued to be the rule in some states after the adoption of the Constitution; but in many it has not been followed, notwithstanding the presence in their Constitutions of provisions preserving trial by jury.
'Lord Mansfield, in applying the common-law rule where the verdict, correct as to one issue, was erroneous as to another, said: '. . . for form's sake, we must set aside the whole verdict . . .' Edie v. East India Co. 1 W.Bl. 295, 298. But we are not now concerned with the form of the ancient rule. It is the Constitution which we are to interpret; and the Constitution is concerned, not with form, but with substance. All of vital significance in trial by jury is that issues of fact be submitted for determination with such instructions and guidance by the court as will afford opportunity for that consideration by the jury which was secured by the rules governing trials at common law. See Herron v. Southern Pacific Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857, decided April 13, 1931. Beyond this, the Seventh Amendment does not exact the retention of old forms of procedure. See Walker v. New Mexico & Southern Pacific R. Co., 165 U.S. 593, 596, 17 S.Ct. 421, 41 L.Ed. 837. It does not prohibit the introduction of new methods for ascertaining what facts are in issue (see Ex parte Peterson, 253 U.S. 300, 309, 40 S.Ct. 543, 64 L.Ed. 919), or require that an issue once correctly determined, in accordance with the constitutional command, be tried a second time, even though justice demands that another distinct issue, because erroneously determined, must again be passed on by a jury.
'* * * Here we hold that, where the requirement of a jury trial has been satisfied by a verdict according to law upon one issue of fact, that requirement does not compel a new trial of that issue even though another and separable issue must be tried again.' 283 U.S. at 497--499, 51 S.Ct. at 514.
This does not mean that the trial court is totally unrestricted in the exercise of its power to grant a new trial upon a single issue. Even Gasoline Products Company, supra, cautions against such unbridled power in the hands of the trial court at page 500, 51 S.Ct. at page 515:
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