Rans v. Pennsylvania R. Co.

• Citation: 133 Ind.App. 592,181 N.E.2d 644
• Decision Date: 11 April 1962
• Docket Number: No. 1,No. 19429,19429,1
• Parties: Delbert R. RANS, Jr., Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, Appellee
• Court: Court of Appeals of Indiana

Page 644

181 N.E.2d 644

133 Ind.App. 592

Delbert R. RANS, Jr., Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, Appellee.

No. 19429.

Appellate Court of Indiana, Division No. 1.

April 11, 1962.

Marshall F. Kizer, Kizer and Neu, Plymouth, Charles C. Campbell, Arthur Metzler, Rochester, for appellant.

Crumpacker, May, Beamer, Levy & Searer, South Bend, for appellee.

COOPER, Judge.

This appeal originated in the Fulton Circuit Court and comes to us from the granting of a motion for new trial under the provisions of § 2-3201(b), Burns', 1961 Supplement, which reads as follows:

'A ruling or order of a court granting a motion for new trial shall be deemed to be a final judgment, and an appeal may be taken therefrom.'

The record before us reveals that the action was brought by the appellant, Delbert R. Rans, Jr., plaintiff below, against the appellee herein, The Pennsylvania Railroad Company, to recover damages for alleged personal injuries sustained in a collision between the appellant's automobile and the appellee's train at a railroad crossing in Kewanna, Fulton County, Indiana.

It appears that the issues were formed on a complaint in two paragraphs to which answer in denial and affirmance were filed by the appellee to each of the two paragraphs of the complaint. The appellee also filed two affirmative paragraphs of answer, the first alleging contributory negligence on the part of the appellant; the other alleging that the negligence of the appellant was the sole and proximate cause of the injuries suffered.

The appellant filed a reply in denial to the affirmative paragraphs of answer. The cause was submitted to a jury which returned a verdict in favor of the appellant, assessing the appellant's damages in the sum of Sixty Five Hundred ($6500.00) Dollars.

It also appears within the thirty-day statutory period after the verdict of the jury, the appellant filed the following motion for a new trial, the pertinent parts being as follow:

'The Defendants in the above entitled cause move for a new trial herein on each of the following grounds:

'1. The Court erred in over-ruling the defendant's motion to strike rhetorical paragraphs 3 and 4 of PARAGRAPH ONE, and rhetorical paragraph 3 of PARAGRAPH TWO, of the plaintiff's complaint.

'2. * * * (Waived)-

'3. * * * (Waived)

'4. That the damages assed by the jury are excessive.

'5. The verdict of the jury is not sustained by sufficient evidence and is contrary to law.

'6. * * * (Waived)

'The Court erred in over-ruling the defendant's motion for a directed verdict in its favor at the conclusion of all of the testimony in the case.

'8. The Court erred in giving each of the Instructions Numbered 1, 2, 9, 15 and 16, asked by plaintiff and objected to by defendant.

'9. The Court erred in refusing to give Instruction No. 7, asked by defendant.

'WHEREFORE, the defendant prays the Court for a new trial of said cause.'

Thereafter, the trial court sustained the appellee's motion for a new trial, and this appeal followed.

The trial court's judgment was: 'Defendant's motion for new trial, heretofore filed June 17, 1959, is now submitted and sustained.'

The assigned error is (1) the court erred in granting the appellee's motion for a new trial; (2) the court erred in sustaining appellee's objection to the filing of a verified petition by appellant to require the court to state in writing the reason it orally stated as the reason for sustaining appellee's motion for a new trial.

It is a general principle of law and we do not deem it necessary to cite authority for the proposition that if the trial court was right in sustaining the motion for a new trial for any reason, we would be compelled to necessarily affirm his action.

The procedure we are compelled to follow under the situation as is now before us is new, and we find no rule or prior precedent of the Supreme Court which outlines such procedure before an appellate tribunal under such circumstances; however, in the recent cases of Rife v. Karns, Ind.App., 181 N.E.2d 239, and Newsom v. Pennsylvania R. R., Ind.App., 181 N.E.2d 240, this court held in discussing procedure under § 2-3201(b) Burns', 1961 Supplement: '* * *good practice requires the trial court to state the reasons for its decision in writing when a motion for new trial is sustained' and '* * * we deem it advisable to impose such a requirement at this time to establish good practice and to further the orderly administration of justice'.

We have reviewed the record now before us with reference to the appellee's motion for a new trial and we are unable to conscientiously say, as a matter of law, that we think the trial court's action was proper with respect to any of the specifications of said motion.

It appears from the record that the appellant herein attempted to file a verified petition to require the trial court to state in writing the reason the court gave orally for sustaining the appellee's motion for a new trial.

The record reveals that the appellee objected to the filing of said petition which set forth the statement made orally by the court, and also the plaintiff tendered to the court his Special Bill of Exceptions #1 which was attached to said petition and made a part thereof. The court sustained said objection. We believe this was an abuse of judicial discretion.

It is apparent the rights of the plaintiff were abridged by the adverse ruling of his offer and tender of a Special Bill of Exceptions for the court's signature so that the same could...