State v. Tabler
| Decision Date | 18 October 1978 |
| Docket Number | No. 3-1075A217,3-1075A217 |
| Citation | 178 Ind.App. 31,381 N.E.2d 502 |
| Parties | STATE of Indiana and the Indiana State Highway Commission, Defendants-Appellants, v. Bryan TABLER, a minor by his next friend, Harvey Tabler, Harvey Tabler, Administrator of the Estate of Carol Joyce Tabler, Deceased, Harvey Tabler, Individually and Terry P. McBride, Plaintiffs-Appellees. |
| Court | Indiana Appellate Court |
Theo. L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for defendants-appellants.
Floyd F. Cook, Cook, Cook & Welke, Kokomo, William S. Spangler, David L. Abel, II of Spangler, Jennings, Spangler & Dougherty, Gary, Thomas B. Dumas, Dumas & Moriarity, Rensselaer, Herbert F. Small, Nelson J. Becker, Hanna, Small, Sabatini & Becker, Logansport, for plaintiffs-appellees.
During a light rain on the morning of March 29, 1973, a tractor-trailer loaded with liquid fertilizer was heading east on U.S. Highway 24, and a smaller truck carrying milk bottles and cartons was heading west. Several hundred feet east of the intersection of U.S. Highway 24 and State Road 13, the highway narrows from four to two lanes. The tractor-trailer had gone through the intersection and was travelling at 30-35 mph when it jackknifed as it came out of the four lane section onto the two lane section of Highway 24. It crossed into the westbound lane where it was struck broadside by the smaller truck.
An explosion and fire resulted which killed the 29 year old driver of the milk truck, Carol Tabler. Her nine year old son, Bryan, was pinned in the truck for one and a half hours before rescuers were able to free him. Terry McBride, the driver of the tractor-trailer, escaped from his truck when its windshield was popped out by the explosion.
Both McBride and Bryan Tabler were severely burned. Without detailing the extent of their injuries, we note that Bryan suffered second and third degree burns on 20% Of his body. The severity of the burns to his legs required their amputation. He was hospitalized for 4 months during which numerous skin grafting operations were performed. He currently requires physical therapy and will continue to do so, especially in the refitting of prosthetic devices as he grows. McBride suffered burns on 45% Of his body, more than a third of which were third degree. His eyelids, part of his nose, eartips, and lips were burned off. His face, hands, arms and upper torso are covered with scar tissue, the aesthetic appearance of which cannot be improved. His hands and what remains of his fingers have limited dexterity and freedom of movement. It is anticipated that their mobility will decrease within the next few years as the result of a form of arthritis associated with extreme burns. McBride was 20 years old at the time of the accident. Like Bryan he was hospitalized for about 4 months and has required extensive skin grafts.
Harvey Tabler, as his son's next friend, as administrator of his wife's estate, and individually, brought an action based on the negligence of McBride against two companies, Chester Inc. and Young Brothers, the lessee and owner of the tractor-trailer. McBride brought an action against the state and the state highway commission alleging that negligent maintenance of the highway caused him to loose control of his truck. Tabler amended his complaint to include the state as a defendant after he entered three loan receipt agreements with the insurer for Chester Inc. and Young Brothers. Chester Inc. and Young Brothers were eventually dismissed and the suits by McBride and Tabler were consolidated.
The jury returned a verdict in favor of all the plaintiffs. However it awarded Harvey Tabler nothing as administrator of his wife's estate. He was awarded $11,000 for loss of services and expenses incurred. Bryan Tabler was awarded $70,000 and McBride received $7,500. The plaintiffs-appellees' motions to correct errors, urging inadequacy of the damages, were granted. Pursuant to Indiana Rules of Procedure, Trial Rule 59(E)(5), appellees were given a new trial solely on the issue of damages unless the state would agree to an additur of $280,000 for Bryan, $150,000 for Harvey Tabler as administrator, and $392,500 for McBride. The jury's award to Harvey Tabler individually was let stand and no argument attacking that portion of the ruling has been advanced on appeal. Accordingly, we leave that judgment undisturbed.
In its findings of fact, the trial court extensively catalogued the type and extent of the plaintiffs' injuries, the care and methods of treatment required, and the degrees of impairment and disability. The court concluded that the damages were grossly inadequate. However, it rejected a new trial on all the issues, stating that retrying liability would be proper only if:
The state has taken an appeal raising several issues, the most crucial of which is the propriety of granting a new trial on damages only. The state argues that the jury's verdict was the result of a compromise on the issue of liability and, therefore, a new trial must be had on all the issues. In support of this it concedes the inadequacy of the awards to McBride and Harvey Tabler, but urges that the award to Bryan was not inadequate, and reflects the jury's belief that he was clearly free from negligence.
Indiana has long adhered to the rule that a new trial is proper where the damages awarded are so small as to indicate that the jury was motivated by ". . . passion, partiality, corruption or considered some improper element." Henschen v. New York Central R. R. Co. (1945), 223 Ind. 393, 399, 60 N.E.2d 738, 740; Rondinelli v. Bowden (1973), 155 Ind.App. 582, 293 N.E.2d 812; Wynder v. Lonergan (1972), 153 Ind.App. 92, 286 N.E.2d 413; Green v. Oakley (1969), 145 Ind.App. 307, 250 N.E.2d 594.
Our brief examination of the evidence sustains the trial court's finding that the damages were inadequate. In the case of Carol Tabler, a young, healthy woman who worked with her husband in their dairy business, the inadequacy of an award of zero dollars needs no further comment. McBride lost $12,000 in wages, incurred $31,000 in medical bills, is 85% Disabled, and will in all likelihood lose the use of his hands for his present occupation as well as for most others. An award of $7,500 does not begin to cover these damages. We disagree with the state that Bryan Tabler's award is adequate. While his was the largest award, it breaks down to about $3.16 a day for the rest of his life's expected length. When consideration is given to the effect the loss of his legs has on his social, educational and employment opportunities and the fact that he suffered excruciating pain during the accident and during the period of treatment and will continue to need therapy, the court's determination that $70,000 was inadequate is justified.
On the other hand, having correctly determined that the damages are inadequate does not necessarily mean that a trial court may properly grant a new trial on damages alone. Indiana Rules of Procedure, Trial Rule 59(E)(5) has been interpreted in Borowski v. Rupert (1972), 152 Ind.App. 9, 281 N.E.2d 502 to permit the trial court to grant a new trial limited solely to the issue of damages or, alternatively, additur. However, the court warned that a new trial on a single issue is proper only when:
". . . it clearly appears that the issue to be retried is so distinct and separable from the others that a trial on...
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