Kelly v. Bunch

• Decision Date: 04 October 1972
• Docket Number: No. 572A217,572A217
• Parties: Mary KELLY, Defendant-Appellant, v. Nellie BUNCH, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 586

287 N.E.2d 586

153 Ind.App. 407

Mary KELLY, Defendant-Appellant, v. Nellie BUNCH, Plaintiff-Appellee.

No. 572A217.

Court of Appeals of Indiana, Third District.

Oct. 4, 1972.

Rehearing Denied Nov. 8, 1972.

John M. Clifton, Jr., J. A. Bruggeman, Barrett, Barrett & McNagny, Fort Wayne, for defendant-appellant.

Howard B. Sandler, Neil F. Sandler, Edward N. Smith, Fort Wayne, for plaintiff-appellee.

HOFFMAN, Chief Judge.

The sole issue presented by this appeal is whether the granting by the trial court of the motion to correct errors filed by plaintiff-appellee was correct. The portion of TR. 59, Indiana Rules of Procedure, IC 1971, 34--5--1--1, Rule 59, that is here involved is TR. 59(A)(6), which reads as follows:

'(A) Motion to correct errors--When granted. The court upon its own motion or the motion of any of the parties for or against all or any of the parties and upon all or part of the issues shall enter an order for the correction of errors occurring prior to the filing thereof, including, without limitation, the following:

'(6) newly discovered material evidence which could not, with reasonable diligence have been discovered and produced at the trial; * * *.'

The pertinent facts may be summarized as follows:

Plaintiff Nellie Bunch brought suit against defendant Mary Kelly to recover for personal injuries allegedly resulting from the negligence of defendant Mary Kelly. Trial was to a jury which returned its verdict for the defendant and judgment was entered in accordance therewith 'that plaintiff take nothing by her complaint.'

Plaintiff Bunch then filed her motion to correct errors pursuant to TR. 59(A) (6), supra, based on the 'existence of newly discovered material evidence', and pursuant to T.R. 59(E)(1), Indiana Rules of Procedure, requested the trial court to grant a new trial. Attached to the motion to correct errors was the affidavit of Betty Archer, a witness to the automobile collision from which the injuries here complained of arose, and the affidavit of Edward N. Smith, attorney for the plaintiff.

The trial court granted plaintiff's motion to correct errors, and in doing so entered a memorandum opinion, a portion of which reads as follows:

'The evidence at the hearing on Plaintiff's motion to correct errors and by affidavit shows that upon investigating the collision Plaintiff's attorney learned that a Betty Roark had witnessed the accident. Further search revealed that Betty Roark had moved from Fort Wayne and was living in California. Plaintiff's attorney then contacted the California State Bar Association to furnish a lawyer to take her deposition. Before the deposition could be taken, Plaintiff's attorney was advised that Betty Roark had moved from California and was rumored to be in Chicago, Michigan or 'somewhere where in the West.' Not until the date of the trial did Plaintiff's attorney discover that Betty Roark had remarried and was now Betty Archer.

'On the basis of the evidence, and in order to prevent a manifest injustice, the court now grants Plaintiff's motion to correct errors and pursuant to Trial Rule 59(E)(1) hereby grants a new trial in this cause.'

From the above order, defendant-Kelly has brought this appeal. See: Rule AP. 4, Indiana Rules of Procedure.

Our research has disclosed many cases dealing with the granting of a new trial because of newly discovered evidence. In each case, the reviewing court has apparently applied substantially the same test, however, over the years, the test has evolved in many and varied forms in accordance with the facts of each case. It would here be impossible to set forth the various tests that have been applied by reviewing courts in the past. At best, we can only synthesize the general rules that are applicable to the case at bar.

A motion for a new trial based on newly discovered evidence should be received with great caution and the alleged evidence should be carefully scrutinized. The newly discovered evidence must be material, and msut be more than just cumulative or impeaching. The party seeking a new trial because of newly discovered evidence must show that the evidence is such that it could not have been discovered before the trial by the exercise of due diligence, and must show that the evidence is such that it would reasonably and probably result in a different verdict. The granting of a new trial because of newly discovered evidence is a matter which rests within the sound discretion of the trial court, whose decision will be disturbed only for a manifest abuse thereof. Where a new trial is granted by the trial court, its ruling will rarely be disturbed.

See:

Keyton v. State (1972), Ind., 278 N.E.2d 277;

Taylor v. State (1971), Ind., 267 N.E.2d 60;

Fultz v. State (1968), 250 Ind. 43, 233 N.E.2d 243, 12 Ind.Dec. 620;

Tungate v. State (1958), 238 Ind. 48, 147 N.E.2d 232;

Fleetwood et al. v. Denny et al. (1969), 145 Ind.App. 404, 251 N.E.2d 454, 255 N.E.2d 121, 18 Ind.Dec. 690;

Trivett v. Trivett (1968), 143 Ind.App. 643, 242 N.E.2d 44, 16 Ind.Dec. 131;

Rans v. Pennsylvania Railroad Co. (1963), 136 Ind.App. 1, 194 N.E.2d 828, 2 Ind.Dec. 511 (transfer denied);

Baptist Church, etc. et al. v. Stalker et al. (1961), 132 Ind.App. 37, 172 N.E.2d 888 (transfer denied).

In the instant case, the affidavits attached to the motion to correct errors along with the other evidence that was before the trial court led the trial court to conclude that the...