White v. Bardach

• Citation: 241 N.E.2d 866,143 Ind.App. 586
• Decision Date: 26 November 1968
• Docket Number: No. 2,No. 20559,20559,2
• Parties: William WHITE, III, Appellant, v. Carol BARDACH, a minor, by next friend, Charles Bardach, Appellee
• Court: Court of Appeals of Indiana

Page 866

241 N.E.2d 866

143 Ind.App. 586

William WHITE, III, Appellant, v. Carol BARDACH, a minor, by next friend, Charles Bardach, Appellee.

No. 20559.

Appellate Court of Indiana, Division No. 2.

Nov. 26, 1968.

As Modified on Rehearing Dec. 16, 1968.

Rehearing Denied Jan. 6, 1969.

Richard Smith, John T. Hume III, Indianapolis, for appellant; Smith & Jones, Indianapolis, Webb, Webb & Smith, Noblesville, of counsel.

James B. Capehart, Grace M. Curry, Indianapolis, for appellee; Bingham, Summers, Welsh & Spilman, Indianapolis, Campbell, Malan, Kyle, Proffitt, Noblesville, of counsel.

SMITH, Judge.

This is an action for the recovery of damages as a result of personal injuries sustained by the appellee Carol Bardach. The action arises as a result of a two-car collision which occurred in Monroe County, Indiana, on April 27, 1963.

The collision, which caused appellee's injuries, between appellant White and appellant Eli Taylor, Jr. occurred after a party held at an abandoned stone quarry south of Bloomington. Taylor was originally a party to the action, but was dismissed as a defendant after a settlement with the appellee in the amount of $10,000.00.

The amended complaint alleges in substance as follows:

That there is in the County of Monroe, State of Indiana, a certain public state highway known and designated as Indiana State Highway No. 37, which highway runs generally in a northerly and southerly direction.

That there is, in the County of Monroe, State of Indiana, a certain county road known and designated as Empire Road, which runs generally in an easterly and westerly direction. That said county road interests with State Highway No. 37 approximately five miles south of the City of Bloomington, State of Indiana.

That State Highway No. 37, at said intersection with Empire Road, is a preferential highway so marked and designated by a stationary stop sign requiring and commanding traffic on said Empire Road to come to a full stop before entering or crossing Highway No. 37.

That on April 27, 1963, at about 8:15 P.M., the appellee-plaintiff, Carol Bardach, was riding as a guest passenger in a Chrysler automobile operated by the appellant-defendant, William M. White III.

That at said time and place the appellant-defendant White was driving his motor vehicle in a generally westerly direction on Empire Road, approaching its intersection with State Highway No. 37.

That at said time and place one Eli Taylor, Jr. was driving his Cadillac motor vehicle in a southerly direction on Highway No. 37 near its intersection with the said Empire Road.

That the appellant-defendant White wantonly or wilfully operated his motor vehicle and collided with the motor vehicle operated by Eli Taylor, Jr. at or near said intersection.

That the wanton or wilful misconduct on the part of the appellant-defendant White consisted of the following acts:

(a) Operating his motor vehicle while under the influence of intoxicating liquors.

(b) Failing to bring his motor vehicle to a complete stop before entering onto said preferential Highway No. 37.

(c) Failing to yield the right of way to other motor vehicles proceeding on said preferential Highway No. 37.

(d) Failing to maintain a lookout for other motor vehicles using said through highway and intersection.

(e) Driving his motor vehicle on the left or southbound lane of traffic while proceeding in a northerly direction.

(f) Failing to turn his motor vehicle to the right or left or bring it to a halt in order to avoid the collision with the motor vehicle operated by Taylor.

(g) Failing to keep his motor vehicle under proper control and on the right half of the traveled portion of said highway.

To this amended complaint the appellant-defendant White filed an answer in three paragraphs in denial and affirmance.

Trial was had to a jury, which entered a general verdict in favor of appellant White.

Appellee-plaintiff filed a timely motion for a new trial which was sustained. The appellant filed his assignment of errors alleging therein five grounds of error. The appellant's alleged errors are as follows:

'1. The trial court erred in sustaining Appellee's Motion For A New Trial.

'2. The trial court erred in overruling Appellant's Motion To Correct Record.

'3. The trial court erred in overruling Appellant's Motion For Directed Verdict at the close of Appellee's Evidence.

'4. The trial court erred in overruling Appellant's Motion For Directed Verdict at the close of all evidence.

'5. The trial court erred in refusing to give Appellant's tendered Instruction No. 1 * * *'

Thereafter, on appellant's motion, this cause was remanded to the trial court for clarification and to state all the reasons for granting the motion for a new trial, and such clarification and reasons have now been duly certified and made a part of the record in this case.

The evidence reveals in substance the following facts: On April 27, 1963, several students from Indiana University attended a party at an abandoned quarry pit located several miles south of Bloomington, Indiana. Appellant White drove several students to this quarry in his 1947 Chrysler motor vehicle. He arrived at the quarry with several cases of bottled beer. During this afternoon other students, riding in other motor vehicles, came to and departed from the party area at the quarry. Before the collision in question, appellant White made two separate trips from the quarry. During the one trip he purchased hot dogs and root beer at a drive-in and returned thereafter to the quarry. While at the party White went swimming, engaged in some dancing, and consumed approximately six to seven bottles of beer, together with various items of food.

Appellee Carol Bardach arrived at the quarry around 2:00 o'clock in the afternoon. She was a passenger in a motor vehicle driven by Ken Alvarez. The motor vehicle in which appellee Bardach was riding returned to Bloomington and the driver of the vehicle picked up Ronald Alvarez and brought him to the quarry. This car then returned around 4:00 P.M. Ronald Alvarez and appellee Bardach stayed with the party for approximately one-half hour and then left on foot. Ronald Alvarez and appellee were gone for approximately three hours. During this period of time appellee Bardach consumed one-half pint of whiskey; and around 8:00 P.M. Ronald Alvarez and appellee Bardach returned to the party. It was then that they discovered that Ken Alvarez had already left the party and that the only vehicle remaining was the vehicle belonging to appellant White. Appellant consented to transport appellee Bardach back to Bloomington.

At the time appellant White turned north onto State Highway No. 37 he drove into the southbound lane of traffic and, upon hearing a warning from a passenger in his vehicle, veered into the northbound, right-hand traffic lane. At that time he collided head-on with the motor vehicle operated by Eli Taylor, Jr. Appellant's turn was a sweeping turn from a gravel road, and the rear of appellant's vehicle was two feet over the center line at the point of impact. At the time of the collision appellant's vehicle was traveling at a speed of approximately 30 miles per hour while the vehicle driven by Eli Taylor, Jr. was traveling approximately 60 to 70 miles per hour. Appellant White came to a full and complete stop before entering the highway and two witnesses testified that they saw no on-coming headlights as appellant turned into said State Highway No. 37.

Direct appeals from the granting of motions for new trials are comparatively new in Indiana practice, having been authorized by Burns' Ind.Stat. § 2--3201. The procedural questions have been concerned with the reasons for granting a new trial, and the scope of review of the trial court's discretion. We have found no decision of an Indiana court in a direct appeal case wherein this court, or the Supreme Court, has gone behind the appellee's motion for a new trial or the court's written reasons and considered independent assignments of other error by the original prevailing party. All of the decisions have been confined to a consideration of the question or questions presented by the motion for a new trial.

The leading case in this area is the case of Bailey v. Kain (1963), 135 Ind.App. 657, 192 N.E.2d 486 (reh. den. Nov. 7, 1963; tr. den. Mar. 3, 1964). In this case the trial court sustained the motion for a new trial and the appellant in his assignment of errors, together with other alleged errors, contended that the trial court erred in sustaining appellee's motion for a new trial. Notwithstanding the fact that the appellant made no motion in the trial court requesting the trial judge to state in writing his specific reasons for sustaining the appellee's motion for a new trial, this court was of the opinion that it was necessary that the trial judge be required to so state his reasons. The case was then remanded to the trial court with instructions; and the trial court in compliance with said instructions, made an entry on the trial court docket which was properly certified by the clerk of said court back to this court.

In the case at bar the trial judge's statement contained several reasons for sustaining the appellee's motion for a new trial. This court has held that if any of the stated reasons set forth by the trial court in support of granting a motion for a new trial are correct, the court would be required to affirm the decision of the lower court. See Newsom v. Pennsylvania Railroad Company (1962), 134 Ind.App. 120, 186 N.E.2d 699; Rans v. Pennsylvania Railroad Co. (1962), 133 Ind.App. 592, 181 N.E.2d 644, 184 N.E.2d 37.

Judge Hunter in the Bailey case succinctly and ably spoke as follows:

'It therefore becomes the sole duty of this court to examine the record to see if (1) the trial court abused its judicial discretion (2) a flagrant injustice has been done the appellant, or (3) a very strong case for relief from the trial court's ordering a new trial...