Holcomb v. Miller

• Decision Date: 21 December 1970
• Docket Number: No. 769A118,No. 1,769A118,1
• Citation: 265 N.E.2d 61,42 Ind.Dec. 111
• Parties: Charlotte R. HOLCOMB, Appellant, v. Mary E. MILLER, Appellee. Glen F. HOLCOMB, Jr., Appellant, v. Mary E. MILLER, Appellee
• Court: Indiana Appellate Court

Page 61

265 N.E.2d 61

Charlotte R. HOLCOMB, Appellant, v. Mary E. MILLER, Appellee.

Glen F. HOLCOMB, Jr., Appellant, v. Mary E. MILLER, Appellee.

No. 769A118.

Appellate Court of Indiana, Division No. 1.

Dec. 21, 1970.

Rehearing Denied Jan. 20, 1971.

Opinion Withdrawn 269 N.E.2d 393.

Isadore D. Rosenfeld, William E. Voor, Jr., South Bend, for appellants.

Roland Obenchain, South Bend, for appellee.

LYBROOK, Judge.

These two causes of action, for personal injury and medical expense, were consolidated and trial by jury resulted in verdicts for each of the Plaintiffs-Appellants against the Defendant-Appellee. Appellee filed a motion for new trial which was granted by the trial court. In this appeal, appellants' sole contention of error is that the trial court abused its discretion in granting appellee's motion for new trial.

Defendant's motion for new trial asserted, insofar as pertinent, that the verdict was not sustained by sufficient evidence. The motion was accompanied by a memorandum in support thereof which reads as follows:

"(a) The uncontroverted evidence established that the defendant was unable to control the operation of her automobile because she experienced a sudden and unanticipated loss of consciousness later diagnosed as an epileptic seizure resulting from an old head injury.

"(b) The only specification of negligence in the complaint is that defendant 'carelessly and negligently drove and propelled her said automobile' over the center line.

"(c) Taking the greater weight of the evidence as a whole, it established that defendant's statutory violation was excusable because under the circumstances established compliance was impossible."

After sustaining defendant's motion for a new trial, the trial court filed its Statement of Reasons for its decision which contains the trial judge's assessment of the evidence.

"In these two cases, consolidated for the purpose of trial and appeal; the sole allegation of negligence is that 'the defendant carelessly and negligently drove and propelled her said automobile from the west lane for south bound traffic into the east lane for north bound traffic and into the front end of the automobile * * * with great force and violence.'

"The plaintiff Charlotte Holcomb, driver of the plaintiff's car, testified that she saw the defendant's car approaching her, watched the car and could see no driver in it.

"The second eye witness testified that he was driving north and saw the defendant's automobile coming toward him and that, as the cars passed, he saw the driver of defendant's car with her head lying back on the back of the front seat.

"The defendant testified that her last recollection was passing a traffic signal; that she passed out and woke up in a hospital emergency room.

"The final witness heard the crash, went immediately to the scene and found the defendant lying on the back seat of the car, shaking, her eyes closed and she was frothing at the mouth.

"Dr. Petrass diagnosed the defendant's seizure at the time of the occurrence as epileptic in nature.

"This uncontradicted evidence discloses that at the time the defendant drove her automobile from the south bound lane into the north bound lane and struck the plaintiff's automobile she was in the course of an epileptic seizure never before experienced; e.g., that she was suddenly stricken by a spell of unconsciousness from an unforeseen cause and by reason thereof was unable to control the motor vehicle which she was driving.

"For these reasons the motion for new trial is granted."

The only issue presented for our determination is whether or not the trial court's decision in granting appellee's motion for new trial should be reversed. This court has had occasion recently to consider this question and we have reaffirmed our earlier pronouncements in Bailey v. Kain (1963) 135 Ind.App. 657, 192 N.E.2d 486, (Transfer denied). In Moore v. Berry Refining Co. (1969) Ind.App., 248 N.E.2d 398, (Transfer denied), the court said, at pages 402, 404-405:

" * * * [Bailey v. Kain] also solidified the standards used by this court in examining appeals from the granting of a Motion for New Trial. This court should not reverse a lower court unless the record clearly reveals that (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. * * *

* * * * * *

"As this court stated in Bailey v. Kain, supra:

'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.' 135 Ind.App. at 663, 192 N.E.2d at 488.

"Further, in Bailey v. Kain, supra, Judge Hunter articulated the guiding principles behind this appellate scope of review:

'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.' 135 Ind.App. 657, 192 N.E.2d 486."

Upon examination of the trial court's statement of reasons for its decision, it is apparent that the court sustained defendant's motion for new trial on the theory that the preponderance of the evidence was against the verdict. It has been well substantiated that, having concluded that the preponderance of the evidence is against the verdict, the trial court has not only the authority but the duty to grant a new trial. To that effect, Judge Smith in White v. Bardach (1968) Ind.App., 241 N.E.2d 866, at page 869, (Transfer denied), 16 Ind.Dec. 75, at page 81, stated:

"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. (1956), 235 Ind. 489, 135 N.E.2d 1; Hinds v. McNair (1955), 235 Ind. 34, 129 N.E.2d 553; State ex rel. Conner v. Pritchard (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 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 v. Stevenson (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 v. Chicago & C. Dist. Tr. Co., supra; Hinds v. McNair, supra; State ex rel. Conner v. Pritchard, supra, and cases cited at p. 59 of 115 Ind.App., at pp. 284-285 of 54 N.E.2d."

The principles of law set forth in Bailey v. Kain, supra, and White v. Bardach, supra, have recently been applied and restated by this court. See Wildwood Manor, Inc. v. Gary National Bank (1970) Ind.App., 255 N.E.2d 128, (Rehearing denied).

In their brief, appellants cite and quote from the case of Landers v. McComb Window and Door Co. (1969) Ind.App., 248 N.E.2d 358, (Transfer denied). The extent of the similarity between the appeal now before us and the Landers case is that the issue presented to this court in Landers was whether or not to uphold the trial court's decision to sustain defendant's motion for new trial. In that case, the trial court granted a new trial on the theory that it had erred in not sustaining defendant's earlier motion for a directed verdict. Upon review of the trial court's reason for sustaining defendant's motion for new trial, this court found that the directed verdict motion was properly refused originally, and, therefore, a new trial should not have been granted. Insomuch as the trial court's reason for sustaining defendant's motion for new trial in the Landers case is in no way similar to the trial court's reason in the present appeal, we are not bound to arrive at the same conclusion as was reached in that case.

It is our opinion that appellants herein have wholly failed to establish any one of the three requisite elements, as set out in Bailey v. Kain, supra, necessary to set aside an order for a new trial....