State v. McKenzie

576 N.E.2d 1258, 1991 Ind. App. LEXIS 1316, 1991 WL 155688
CourtIndiana Court of Appeals
DecidedAugust 13, 1991
Docket92A03-9007-CV-0296
StatusPublished
Cited by13 cases

This text of 576 N.E.2d 1258 (State v. McKenzie) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McKenzie, 576 N.E.2d 1258, 1991 Ind. App. LEXIS 1316, 1991 WL 155688 (Ind. Ct. App. 1991).

Opinions

STATON, Judge.

The State of Indiana, Department of Highways appeals the grant of a new trial. Although the parties couch the dispute in a number of issues, these may be consolidated to the following two:

I. Whether the trial court erred in granting a new trial after the jury returned a verdict for the plaintiff in the amount of $50,000.
II. Whether the trial court should have limited its grant of a new trial to the issue of damages.
We affirm.

On February 22, 1988, Brian C. McKenzie was following a snow plow heading east on S.R. 120 in LaGrange County, Indiana when a westbound semi-tractor trailer passed the snow plow, entered McKenzie's lane, and collided with his vehicle. McKenzie died as a result of injuries sustained in the accident.

McKenzie's estate and his widow, Karin (collectively, "Estate), filed this wrongful [1260]*1260death action, naming the driver of the truck, the trucking company, and the State of Indiana, Department of Highways as defendants. The Estate settled with the driver and the company for $700,000 and the cause went to trial against the State. The jury returned a verdict for the plaintiff in the amount of $50,000, which was set-off against the $700,000 settlement amount, and the trial court adjudged that the plaintiff take nothing by way of her complaint.

The Estate filed a motion to correct error, which was granted by the trial court. Pursuant to that motion, the trial judge ordered that a new trial be held. The State appeals.

I.

New Trial

When faced with a motion for new trial, the trial judge sits as a thirteenth juror and may order a new trial if he determines that the jury's verdict is against the weight of the evidence. Berg v. Glinos (1989), Ind. App., 538 N.E.2d 979, 981. It is the trial judge's function to weigh the evidence and judge the credibility of the witnesses. Id.

Upon review of a trial court's grant of a new trial, our sole duty is to examine the record to see if:

(1) The trial court abused its discretion;

(2) A flagrant injustice has been done to the appellant; or

(3) A very strong case for relief from the trial court's order of a new trial has been made by the appellant. Memorial Hospital of South Bend, Inc. v. Scott (1973), 261 Ind. 27, 300 N.E.2d 50, 54. In applying this standard, the trial court's grant of a new trial is given a strong presumption of correctness. Id. 800 N.E.2d at 53.

The State first argues that the trial court erred in failing to adequately set forth findings of fact which supported the jury finding as required by Trial Rule 59(J)(7).1 The procedural requirements outlined in Trial Rule 59(J)(7) have been characterized as "paramount," and the process of entry of the requisite findings as "arduous and time-consuming." Nissen Trampoline v. Terre Haute First Nat. Bank (1977), 265 Ind. 457, 858 N.E.2d 974, 978. The purpose of the requirements is to provide the parties and the reviewing court with the theory of the trial court's decision. In re Marriage of Huth (1982), Ind.App., 437 N.E.2d 1042, 1047. Thus, the findings may summarize the evidence, so long as the summary is complete enough to facilitate appellate review. Brown v. Conrad (1988), Ind.App., 531 N.E.2d 1190, 1193, transfer denied; Bossard v. McCue (1981), Ind.App., 425 N.E.2d 682, 684, trangfer denied.

Much of the evidence regarding damages was stipulated to or not controverted. This evidence was set out at length by the trial court, with citations to the exhibits, witnesses and stipulations which were the sources of the information. The court also entered the following findings:

[1261]*1261(h) George V. Launey, Ph.D., testified that the economic losses including wages sustained by Karin D. McKenzie by reason of the demise of Brian C. McKenzie were, calculated at present value, between $1,805,486.00 and $1,731,538.00 (Exhibits 72-76 inclusive).

¥ * * % *

(k) The elements of loss of love, care and affection sustained by Karin D. McKenzie were amply disclosed by the testimony of Karin D. McKenzie.

(1) Defendant, in closing argument by its counsel, conceded that plaintiff, Karin D. McKenzie, had truly been damaged.

4. The Court finds the evidence relating to damages presented upon behalf of plaintiff was the sole evidence of damages in the trial and was not impeached by cross-examination, and was credible.

* L * L *

6. The Court finds that defendant, except through cross-examination of George V. Launey, Ph.D., did not submit The any evidence concerning damages. cross-examination of George V. Launey, Ph.D., did not impeach his testimony which the Court finds to be credible and worthy of belief.

Record, pp. 12-13.

The State selectively sets out portions of the cross-examination testimony elicited from Professor Launey, arguing that the trial judge failed to set out those portions of the cross-examination in his findings. Clearly, however, the judge has indicated that all of the evidence relating to damages presented by the State was introduced through cross-examination of Professor Launey. This statement is sufficient to allow us to locate the testimony in the record which supported the verdict.2 In addition, it satisfies us that the trial judge considered this evidence in deciding whether to grant a new trial. As the trial judge's findings were adequate to permit appellate review, we conclude that they were sufficient to comply with the requirements of Trial Rule 59(J)(7).

The State next argues that the trial judge abused his discretion in granting a new trial. It cites the case of Sanders v. Cole Municipal Finance (1986), Ind.App., 489 N.E.2d 117, transfer denied. In Sanders, the plaintiffs appealed the trial court's denial of a motion for new trial after the jury returned a verdict for $320,000.00, where the plaintiff's expert gave his opinion that the economic damages totalled over $860,000. We affirmed, noting the strong presumption of correctness afforded the trial court's decision to grant or deny a new trial. We also stated that "[eJach case must rest on its own merits since, although there can be similarities with other cases, the facts and circumstances will be peculiar to each case." Id. at 128.

Although it is true, as we stated in Sanders, that the jury is free to accept or reject the opinion testimony of an expert, even to the point of supplanting its conclusion for that of the expert, the expert testimony was not the only evidence relating to damages which was placed before the jury in this case. The uncontroverted evidence established that the decedent was a twenty-five-year-old self-employed college graduate with a stipulated life expectancy at the time of his death of over forty-five years. He was in good health at the time of his death.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Leroy v. Kucharski
878 N.E.2d 247 (Indiana Court of Appeals, 2007)
Chafin v. Grayson
761 N.E.2d 474 (Indiana Court of Appeals, 2002)
Neher v. Hobbs
752 N.E.2d 48 (Indiana Court of Appeals, 2001)
Dughaish Ex Rel. Dughaish v. Cobb
729 N.E.2d 159 (Indiana Court of Appeals, 2000)
State v. Johnson
714 N.E.2d 1209 (Indiana Court of Appeals, 1999)
State of Indiana v. Johnson
Indiana Supreme Court, 1999
DeVittorio v. Werker Bros., Inc.
634 N.E.2d 528 (Indiana Court of Appeals, 1994)
Malacina v. Malacina
616 N.E.2d 1061 (Indiana Court of Appeals, 1993)
Hunter v. Byrd
602 N.E.2d 1052 (Indiana Court of Appeals, 1992)
State v. McKenzie
576 N.E.2d 1258 (Indiana Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
576 N.E.2d 1258, 1991 Ind. App. LEXIS 1316, 1991 WL 155688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckenzie-indctapp-1991.