State v. Tabler
Citation | 395 N.E.2d 787,272 Ind. 32 |
Decision Date | 29 October 1979 |
Docket Number | No. 3-1075A217,3-1075A217 |
Parties | 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). |
Court | Supreme Court of Indiana |
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.
ON PETITION TO TRANSFER
Petition to Transfer Denied. (For opinion of Court of Appeals see 381 N.E.2d 502.)
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 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:
The trial court then gave his reason for denying a new trial on the issue of liability in the following words:
(Emphasis added.)
This clearly shows that the court fulfilled his duty to weigh the evidence on the issue of liability and found that the verdict on That issue was not contrary to the evidence.
I feel the appellees are correct in pointing out two arguments. First, on consideration of a motion for a new trial, it is the trial judge alone, and not the Court of Appeals, who sits as a "thirteenth juror" to weigh conflicting evidence. Memorial Hospital of South Bend v. Scott, (1973) 261 Ind. 27...
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State v. Kallembach
... ... her life. Her total damages far exceed the jury award of $100,000 ... In Indiana, a new trial is proper when the damages awarded are so small as to indicate that the jury was motivated by passion, partiality, 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 to grant a limited new trial. In Tabler, supra, ... ...
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Sanders v. Cole Mun. Finance, 3-185A24
...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 judgment in favor o......
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State v. McKenzie
...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 verdict on lia......