Griffith v. Mathew

• Decision Date: 19 September 1967
• Docket Number: No. 1,No. 20600,20600,1
• Citation: 141 Ind.App. 462,11 Ind.Dec. 181,229 N.E.2d 657
• Parties: Juanita May GRIFFITH, Appellant, v. Mildred MATHEW, Appellee
• Court: Indiana Appellate Court

Page 657

229 N.E.2d 657

141 Ind.App. 462

Juanita May GRIFFITH, Appellant, v. Mildred MATHEW, Appellee.

No. 20600.

Appellate Court of Indiana, Division No. 1.

Sept. 19, 1967.

Rehearing Denied Oct. 30, 1967.

Harry J. Jennings and Richard A. Mayer, Spangler, Jennings, Spangler & Dougherty, Gary, Leon R. Kaminski, Newby, Lewis & Kaminski, LaPorte, for appellant.

Walter Nowicki, Edward J. Raskosky, George Kohl and Paul K. Gaines, Hammond, for appellee.

FAULCONER, Judge.

This appeal involves an action for personal injuries allegedly sustained by plaintiff-appellee, Mildred Mathew, while riding as a passenger in an automobile owned and operated by her husband, which automobile was involved in a collision with a vehicle being operated by defendant-appellant, Juanita May Griffith.

Trial was by jury which rendered a verdict in favor of appellant, and judgment was duly entered thereon. Appellee then filed a motion for new trial, which motion was sustained by the trial court for the following reasons:

'1. That under specification 1 of the motion for new trial, the Court after weighing all of the evidence is of the opinion that the verdict of the jury was against the clear preponderance of the evidence, the preponderance of the evidence being in favor of the plaintiff and against the defendant.

'2. That under specification 3(a) of the motion for a new trial, the Court erred in the giving to the jury the Court's instructions 13, 20, 24, 31 and 34.'

From the granting of the motion for a new trial, the appellant prosecutes this appeal assigning as error that the trial court erred in sustaining both of the above counts of appellee's motion for a new trial.

It should be stated at the outset that if any of the reasons stated by the trial judge are valid, this court must affirm the order granting the motion for new trial. Newsom v. Pennyslvania Railroad Co., et al. (1962), 134 Ind.App. 120, 122, 123, 186 N.E.2d 699; Lowry v. Indianapolis Traction, etc., Co. (1921), 77 Inc.App. 138, 157, 126 N.E. 223.

As stated by this court in Bailey v. Kain (1964), 135 Ind.App. 657, at p. 662, 192 N.E.2d 486, at page 488, 2 Ind.Dec. 34 (Transfer denied),

'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.'

The duty of the trial judge when confronted with a motion for a new trial is very well stated by Judge Hunter in Bailey v. Kain, supra, at pages 662--665 of 135 Ind.App., pages 488--490 of 192 N.E.2d, as follows:

'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. (Citing authorities.)

'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. (Citing authorities.)

'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; 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, for at the appellate level we have only the record and briefs exemplified by the cold type before us. Hinds, Executor, etc. v....