Pepsi Cola Bottling Co., Inc. of Indianapolis v. Polk

• Decision Date: 18 August 1981
• Docket Number: No. 2-180A17,2-180A17
• Citation: 424 N.E.2d 1038
• Parties: PEPSI COLA BOTTLING CO., INC. OF INDIANAPOLIS, Defendant-Appellant, v. Steven POLK, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1038

424 N.E.2d 1038

PEPSI COLA BOTTLING CO., INC. OF INDIANAPOLIS, Defendant-Appellant, v. Steven POLK, Plaintiff-Appellee.

No. 2-180A17.

Court of Appeals of Indiana, First District.

Aug. 18, 1981.

Rehearing Denied Sept. 25, 1981.

Ivan D. Floyd, Joseph M. Dietz, Rocap, Rocap, Reese & Young, Indianapolis, for defendant-appellant.

Samuel L. Jacobs, Richard J. Dick, Robin L. Babbitt, Eskenazi, Mitchell, Yosha & Hurst, Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant Pepsi Cola Bottling Co., Inc. of Indianapolis (Pepsi) appeals from a new trial order limited to the issue of damages entered in the Marion Superior Court setting aside a jury verdict and judgment in the amount of $15,000 in favor of plaintiff-appellee Steven Polk (Polk).

We affirm.

STATEMENT OF THE FACTS

The record discloses that on September 2, 1976, Polk, while motorcycling south on North Parker Avenue, Indianapolis, Indiana, approached and stopped at the intersection of East 10th Street, a heavily trafficked four-lane artery. In an effort to better view the east-to-west moving traffic on East 10th Street, Polk moved forward to the edge of the intersection so that his motorcycle was in line with the parked vehicles along the north side of East 10th Street. The vehicle parked to Polk's immediate right was Pepsi's delivery truck (truck). The rear of it protruded several feet beyond the curb toward Polk. From his present position as he waited for the East 10th Street traffic to subside, the truck was parked no more than a few feet to his right. Without being aware that it had started to back up, Polk felt the rear of the truck press into him. The truck pinned his right leg against the motorcycle making it impossible for Polk to move out of the way. As the truck continued to back up, Polk screamed and pounded on its rear panel, but to no avail. Two gas station attendants from across the street succeeded in gaining the driver's attention by motioning him to pull forward, which he did. Nevertheless, Polk's left ankle was severely crushed beneath the motorcycle. As a result of his injury, metal screws were surgically inserted to repair his ankle. Polk's surgeon, Dr. Schneider, testified that the ankle would never be normal again and Polk would experience permanent pain. Dr. Schneider also testified that it was likely traumatic arthritis would develop due to the severity of the injury to Polk's ankle.

Following surgery and returning to his job at Chrysler, Polk continued to experience persistent pain and swelling of the ankle. He had missed 27 weeks of regular work at Chrysler; in addition, Polk testified that due to pain and swelling in his ankle he was unable to perform overtime work. Polk testified that his loss of wages, not including overtime pay, amounted to $10,000. His medical expenses amounted to approximately $2,500.

In his complaint, Polk had sought $275,000 in damages. The jury returned a verdict in his favor for $15,000. Thereafter, Pepsi filed its motion for entry of the judgment upon the verdict, and the trial court so entered its judgment. Polk filed a motion to correct errors citing the jury verdict as to damages as inadequate and against the weight of the evidence. The trial court ruled in favor of Polk's motion finding the jury verdict "not in accordance with the evidence ... and impractical and unfair ... improper as not consistent with the uncontradicted evidence and weight of the evidence on the issues of damages." Therefore, upon its findings, the trial court granted a new trial limited to the issue of damages.

ISSUES

Pepsi presents the following issues:

I. Did the trial court err in failing to follow Ind.Rules of Procedure, Trial Rule 59(E)(7) in formulating its special findings;

II. Did the trial court err in granting a new trial; and III. If a new trial is required, is it unfair and impracticable to limit the new trial to the issue of damages only.

DISCUSSION AND DECISION

Initially, we note that this cause was remanded to the trial court based on our determination of Issue I in an unpublished opinion, Pepsi Cola Bottling Co., Inc. of Indianapolis v. Steven Polk, (1981) Ind.App., 422 N.E.2d 759. Pursuant to our instruction, the trial court corrected its final order of July 7, 1979, which now complies with the requirements of Indiana Rules of Procedure, Trial Rule 59(E)(7). ¹ The trial court, in its corrected order, sufficiently related the supporting and opposing evidence to the issue of damages upon which it granted a new trial.

Issue II. New trial

In its brief, Pepsi has completely misapplied the various standards of review which govern the trial court and Court of Appeals. The trial court's standard of reviewing a verdict when considering a motion for a new trial is governed by T.R. 59(J)(7). It prescribes the procedure a trial court must follow in granting a new trial, and, in pertinent part, provides:

"In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; ...

... (A)nd if a new trial is required it shall be limited only to those parties and issues affected by the error unless such relief is shown to be impracticable or unfair. If corrective relief is granted, the court shall specify the general reasons therefor. When a new trial is granted because the verdict, findings or judgment do not accord with the evidence, the court shall make special findings of fact upon each material issue or element of the claim or defense upon which a new trial is granted. Such finding shall indicate whether the decision is against the weight of the evidence or whether it is clearly erroneous as contrary to or not supported by the evidence; if the decision is found to be against the weight of the evidence, the findings shall relate the supporting and opposing evidence to each issue upon which a new trial is granted; if the decision is found to be clearly erroneous as contrary to or not supported by the evidence, the findings shall show why judgment was not entered upon the evidence."

In describing the trial judge's duties when faced with a motion for a new trial, Justice Hunter in Memorial Hospital of South Bend, Inc. v. Scott, (1973) 261 Ind. 27, at 33, 300 N.E.2d 50, said "the trial judge has an affirmative duty to weigh conflicting evidence. The trial judge sits as a 'thirteenth juror' and must determine whether in the minds of reasonable men a contrary verdict should have been reached." And as a thirteenth juror, the trial judge: 1) hears the case along with the jury; 2) observes witnesses for their credibility, intelligence and wisdom; and 3) determines whether the verdict is against the weight of the evidence. Weenig v. Wood, (1976) 169 Ind.App. 413, 349 N.E.2d 235; Scott, supra; Bailey v. Kain, (1963) 135 Ind.App. 657, 192 N.E.2d 486. When the verdict is against the weight of the evidence, it is the trial court's duty to grant a new trial. Bredemeyer v. Cooper, (1971) 150 Ind.App. 511, 276 N.E.2d 615; T.R. 59(J)(7).

Upon the trial court's granting of a new trial, the Court of Appeals is governed by an entirely different rule of law on review.

"An appellate court cannot assume the responsibility of weighing conflicting evidence in reviewing the trial judge's action on a motion for a new trial ... 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."

261 Ind. at 33, 300 N.E.2d 50. In applying this review standard, the trial court's action in granting a new trial is given a strong presumption of correctness. Scott, supra; Stanley v. Kelley, (1981) Ind.App., 417 N.E.2d 1145; Bailey, supra. Therefore, it is our duty to affirm the trial court's new trial order unless it is clearly demonstrated by Pepsi that the trial court abused its discretion.

Pepsi argues that for ...