Brown v. Conrad

• Decision Date: 20 December 1988
• Docket Number: No. 73A04-8802-CV-59,73A04-8802-CV-59
• Parties: Byron J. BROWN, Appellant (Defendant Below), v. Ernest W. CONRAD, Jr., and Mary Nell Conrad, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 1190

531 N.E.2d 1190

Byron J. BROWN, Appellant (Defendant Below), v. Ernest W. CONRAD, Jr., and Mary Nell Conrad, Appellees (Plaintiffs Below).

No. 73A04-8802-CV-59.

Court of Appeals of Indiana,

Fourth District.

Dec. 20, 1988.

J. Lee McNeeley, M. Michael Stephenson, Shelbyville, for appellant.

Robert L. Sheaffer, Shelbyville, for appellees.

CONOVER, Presiding Judge.

Defendant-Appellant Byron Brown (Brown) appeals an order granting a new trial upon Plaintiff's-Appellee's Ernest and Mary Conrad's (Conrads) motion to correct error. Ind.Rules of Procedure, Trial Rule 59(J)(7).

Brown presents two issues:

1. did the trial court err by vacating a judgment in his favor; and

2. did the trial court err by granting a new trial on the issue of damages?

On November 9, 1985, Brown drove his car into the rear of Ernest Conrad's car injuring him. The Conrads sued, alleging Brown was negligent and his negligence caused Ernest severe and permanent injury, and Brown's negligence caused Mary to lose Ernest's services and companionship. (R. 4-6).

At trial, the Conrads presented evidence concerning Ernest's injuries and Mary's derivative injuries resulting from the accident. Brown presented evidence as to Ernest's preexisting illnesses and injuries, including Ernest's status as a 100% Social Security Disability recipient at the time of the accident. In an instruction labeled "comparative fault" the court, without objection, instructed the jury:

You must decide this case on the basis of the Indiana Law of comparative fault.

The term "fault" refers to varieties of conduct which makes a person responsible, in some degree, for an injury[.] The types of fault at issue in this case are:

Negligence. I will instruct you further concerning these types of fault.

You will first determine whether the defendant was at fault. The court instructs you that as a matter of law you must find the defendant to be 100% at fault in this case. [Y]ou must then determine the amount of damages, if any, necessary to compensate the plaintiff for his injury as proximately caused by any acts of the defendant.

(R. 128-129).

The jury returned a verdict in favor of Brown, against both Ernest and Mary. (R. 654). Judgment was entered for Brown (R. 151). Upon the Conrads' motion to correct error, the court vacated the judgment and ordered a new trial limited to the issue of damages. In compliance with Ind.Rules of Procedure, Trial Rule 59(J)(7) the court found:

... the verdict of the non-advisory jury is clearly erroneous as contrary to the evidence. The judgment of September 23, 1987, is vacated with a new trial ordered, based on the following findings:

1. The Court heard all of the evidence in the case and determines that the verdict is clearly erroneous as contrary to the evidence.

2. The Court instructed the jury in final instruction # 18 as follows: "The Court instructs you that as a matter of law you must find the defendant to be 100% at fault in this case."

3. The jury did not follow this instruction in finding for the defendant.

4. The evidence is uncontroverted that Mr. Conrad was sitting in his car stopped at a traffic light in a line of traffic when he was forcefully struck in the rear of his vehicle by the defendant. It is further uncontradicted that Mr. Conrad required an ambulance and emergency room services and incurred medical expenses of at least $500.00. The Court determines that at least these damages were proximately caused by defendant's negligence and should have been included in a verdict for the Plaintiffs. Other damages and severity thereof were disputed due to a previous similar accident, obesity, type of knee injury and other factors which could be considered by the jury.

5. It is impractical and not appropriate for the Court to award damages in any sum for the Plaintiffs as this matter should be resolved at a further trial.

6. A new trial should be granted on the issue of damages only as the defendant was clearly negligent in breaching his duty as a driver of an automobile, said duty being owed to the Plaintiffs, and his breach proximately resulting in damages to Mr. Conrad and possibly Mrs. Conrad.

(R. 0003A-B). Brown appeals.

Brown contends the court erred when it vacated the judgment and granted a new trial on the issue of damages. ¹ Citing Baskin v. Jones (1984), Ind.App., 470 N.E.2d 82, Brown claims negligence alone will not support a recovery. Brown argues the court wrongly focused upon its instruction. He states the jury reasonably could have determined Conrad's injuries were preexisting, not attributable to the accident. Thus, Brown opines, the jury verdict was consistent with the court's instruction. In the alternative, Brown argues, if the court did not err by vacating the judgment a new trial is unnecessary. There is, Brown avers, sufficient evidence from which the court could determine damages attributable to the accident.

The Conrads claim the trial court did not err by vacating the judgment because the evidence of fault was uncontroverted and Brown did not object to the trial court's instruction covering that subject matter. The Conrads state a new trial on the issue of damages is necessary because the nature and source of his injuries was disputed. The Conrads argue the verdict was contrary to the evidence and is not consistent with the court's instruction.

We recently noted:

The court's standard in reviewing a grant of a new trial was established in Memorial Hospital v. Scott, et al. (1973), 261 Ind. 27, 300 N.E.2d 50, 54:

The sole duty of an appellate court is to examine the record to see if:

(a) the trial court abused its judicial discretion;

(b) a flagrant injustice has been done the appellant; or

(c) a very strong case for relief from the trial court's ordering a new trial has been made by the appellant.

A trial court's granting of a new trial is given a strong presumption of correctness. Huff [v. Travelers Indem. Co.], supra [ (1977), 266 Ind. 414], 363 N.E.2d at 994.

The judge stands as a thirteenth juror and may order a new trial when the court determines the jury's verdict is against the weight of the evidence. See, T.R. 59(J)(7).

Tancos v. A.W., Inc. (1986), Ind.App., 502 N.E.2d 109, 114. Accord, Capitol Neon Signs, Inc. v. Indiana National Bank (1986), Ind.App., 501 N.E.2d 1082, 1084; Sanders v. Cole Municipal Finance, et al. (1986), Ind.App., 489 N.E.2d 117, 124. The judge's decision will be reversed only for abuse of discretion. If the court finds the conclusion is contrary to the decision which should have been reached by reasonable persons a new trial is correctly granted. Sanders, 489 N.E.2d at 124.

In Baskin v. Jones (1984), Ind.App., 470 N.E.2d 82, our Third District affirmed a judgment rendered upon a jury verdict in favor of a defendant driver. The court decided under the facts presented the jury could have found no breach of duty or could have found plaintiff failed to prove her injuries were caused by the defendant's acts. Brown argues Baskin stands for the proposition a finding of negligence alone will not support a recovery, that proximate cause and damages must be proven too.

In Baskin there was no instruction like the one set out above. Baskin says negligence "is simply the failure to use ordinary, or reasonable, care under the circumstances," and cites Central Transport, Inc. v. Great Dane Trailers, Inc. (1981), Ind.App., 423 N.E.2d 675, 678. There, however, Judge Chipman was discussing only the standard of care one must exercise. He was not defining negligence to mean only breach of duty. The primary basis for the affirmance in Baskin was the jury could have found no breach of duty. Baskin, 470 N.E.2d at 83.

For negligence to be actionable, there must be a duty owing to plaintiff, breach of that duty by defendant, and injury to plaintiff proximately caused by defendant's breach of that duty. E.g., Bridgewater v. Economy Engineering Co. (1985), Ind., 486 N.E.2d 484, reh. denied; Miller v. Griesel (1974), 261 Ind. 604, 610-611, 308 N.E.2d 701, 706.

The court's instruction Brown was "100% at fault" is the same, as a matter of law, as an instruction one was "100% negligent." That is, the instruction held Brown breached a duty owing to the Conrads and that breach proximately caused them at least some damage. It is, in effect, a directed verdict for plaintiffs on the issue of liability. ² This is consistent with the court's instruction the jury must compensate the Conrads for those injuries proximately caused by the accident. That part of the instruction left the sorting of the injuries caused by the accident and the dollar amounts of damage to the jury. A verdict for the defendant on the issue of liability was not proper under the instruction given. Cf. Sanders v. Cole Municipal Finance (1986), Ind.App., 489 N.E.2d 117, 125 (judgment upon jury verdict in favor of a plaintiff should have been entered although crediting for amounts already paid resulted in no additional liability for damages).

Brown asserts the damages discussed by the trial court in its findings were readily ascertainable and judgment should have been entered in those amounts. Under T.R. 59(J)(7) the trial court finding a jury's decision is against the weight of the evidence must relate supporting and opposing evidence to each issue upon which a new trial is granted. Coffel v. Perry (1983), Ind.App., 452 N.E.2d 1066, 1068. Here, ...