State v. Tabler, No. 3-1075A217

Docket NºNo. 3-1075A217
Citation395 N.E.2d 787, 272 Ind. 32
Case DateOctober 29, 1979
CourtSupreme Court of Indiana

Page 787

395 N.E.2d 787
272 Ind. 32
STATE of Indiana and the Indiana State Highway Commission,
Appellants (Defendants below),
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, Appellees (Plaintiffs below).
No. 3-1075A217.
Supreme Court of Indiana.
Oct. 29, 1979.

Appeal from Jasper Circuit Court; Michael S. Kanne, Judge.

Theo. L. Sendak, Atty. Gen., Robert S. Spear, Asst. Atty. Gen., Indianapolis, for appellants.

Floyd F. Cook, Cook, Cook & Welke, Kokomo, Herbert F. Small, Nelson J. Becker, Hanna, Small, Sabatini & Becker, Logansport, for appellees Bryan Tabler, a minor by his next friend, Harvey Tabler, Harvey Tabler, Administrator of the Estate of Carol Joyce Tabler, deceased, and Harvey Tabler, Individually.

William S. Spangler, David L. Abel, II, Spangler, Jennings, Spangler & Dougherty, P. C., Gary, Thomas B. Dumas, Dumas & Moriarity, Rensselaer, for appellee Terry P. McBride.

Page 788

ON PETITION TO TRANSFER

Petition to Transfer Denied. (For opinion of Court of Appeals see 381 N.E.2d 502.)

HUNTER, Justice, dissenting to denial of transfer.

I dissent to the denial of the petition to transfer in this case because in my view Ind.R.Tr.P. 59(E)(5) and (7) and the Bailey v. Kain, (1963) 135 Ind.App. 657, 192 N.E.2d 486, line of cases completely [272 Ind. 33] uphold the trial court's action in granting a new trial solely upon the issue of damages.

The trial court made specific findings of fact on the issue of damages and indicated that the jury's verdict on that issue was clearly erroneous as contrary to the evidence. He specifically listed all the undisputed evidence which would show the jury's verdict on this issue was inadequate. This is in accordance with Ind.R.Tr.P. 59(E)(7) which states in part:

"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 clearly erroneous as contrary to or not supported by the evidence, the findings shall show why judgment was not entered upon the evidence."

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6 practice notes
  • Sanders v. Cole Mun. Finance, No. 3-185A24
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1986
    ...such relief requires as a basis a finding of inadequate damages, State v. Tabler (1978), 178 Ind.App. 31, 381 N.E.2d 502, trans. denied, 272 Ind. 32, 395 N.E.2d 787 (1979), and such a finding was not appropriate in this case for the reasons stated Appellants assert that the entry of judgmen......
  • State v. Kallembach, No. 1-283A36
    • United States
    • Indiana Court of Appeals of Indiana
    • August 23, 1983
    ...corruption or considered some improper element. State v. Tabler, (1978), 178 Ind.App. 31, 381 N.E.2d 502, trans. den. (1979) Ind., 395 N.E.2d 787. The trial court's finding that the damages were inadequate was correct; however, such a finding does not in and of itself permit a trial court t......
  • Campbell v. State, No. 1184S446
    • United States
    • Indiana Supreme Court of Indiana
    • November 20, 1986
    ...the jury to infer that the crime occurred in a given county, such a finding will not be disturbed on appeal." Sizemore v. State, 272 Ind. at 32, 395 N.E.2d at 787. We believe the jury could infer from the substantial circumstantial evidence that the crimes charged occurred in Franklin ......
  • State v. McKenzie, No. 92A03-9007-CV-0296
    • United States
    • Indiana Court of Appeals of Indiana
    • August 13, 1991
    ...is shown to be impracticable or unfair." We stated in State v. Tabler (1978), 178 Ind.App. 31, 381 N.E.2d 502, 506, transfer denied 272 Ind. 32, 395 N.E.2d 787, that a new trial limited to damages because of an award of inadequate damages is proper only when it is clear that the verdic......
  • Request a trial to view additional results
6 cases
  • Sanders v. Cole Mun. Finance, No. 3-185A24
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1986
    ...such relief requires as a basis a finding of inadequate damages, State v. Tabler (1978), 178 Ind.App. 31, 381 N.E.2d 502, trans. denied, 272 Ind. 32, 395 N.E.2d 787 (1979), and such a finding was not appropriate in this case for the reasons stated Appellants assert that the entry of judgmen......
  • State v. Kallembach, No. 1-283A36
    • United States
    • Indiana Court of Appeals of Indiana
    • August 23, 1983
    ...corruption or considered some improper element. State v. Tabler, (1978), 178 Ind.App. 31, 381 N.E.2d 502, trans. den. (1979) Ind., 395 N.E.2d 787. The trial court's finding that the damages were inadequate was correct; however, such a finding does not in and of itself permit a trial court t......
  • Campbell v. State, No. 1184S446
    • United States
    • Indiana Supreme Court of Indiana
    • November 20, 1986
    ...the jury to infer that the crime occurred in a given county, such a finding will not be disturbed on appeal." Sizemore v. State, 272 Ind. at 32, 395 N.E.2d at 787. We believe the jury could infer from the substantial circumstantial evidence that the crimes charged occurred in Franklin ......
  • State v. McKenzie, No. 92A03-9007-CV-0296
    • United States
    • Indiana Court of Appeals of Indiana
    • August 13, 1991
    ...is shown to be impracticable or unfair." We stated in State v. Tabler (1978), 178 Ind.App. 31, 381 N.E.2d 502, 506, transfer denied 272 Ind. 32, 395 N.E.2d 787, that a new trial limited to damages because of an award of inadequate damages is proper only when it is clear that the verdic......
  • Request a trial to view additional results

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