# Collins v. Grabler > Indiana Court of Appeals · October 22, 1970 · 147 Ind. App. 584 URL: https://www.frixlaw.com/law-library/cases/9735053 ## Case - **Full name:** Thomas Collins v. Lawrence Grabler - **Court:** Indiana Court of Appeals - **Decided:** October 22, 1970 - **Citations:** 147 Ind. App. 584; 263 N.E.2d 201; 1970 Ind. App. LEXIS 420 - **Precedential status:** Published - **Opinion:** Concurrence by Carson - **Judges:** Lowdermilk, Cooper, Carson, Sullivan - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735053 ## Opinion text *593 CONCURRING OPINION Carson, J. I concur in the result reached by the writing Judge in this appeal but for a different reason. The record indicates that the jury returned a verdict for the plaintiff-appellant; that the defendant filed a motion for a new trial; that the trial judge sustained the motion for a new trial and after order of this court specified his reasons for sustaining said motion. The reasons in writing filed in the record in this cause contain, among other things, the following language: “In response to the order of the Appellate Court of Indiana that ‘the Judge of the DeKalb Circuit Court set out the specific reasons on which he determined the verdict of the jury in finding for the Plaintiff and awarding damages upon such finding was not sustained by sufficient evidence and was against the clear preponderance of the evidence adduced in the trial of the cause’, the Judge of the DeKalb Circuit Court respectfully states that the clear preponderance of the evidence, indeed the uncontroverted evidence, adduced in the trial of said cause shows: “1. That the Plaintiff, Collins, and the Defendant, Grabler, got together on the night in question for the planned and expressed purpose of having a night on the town and to go from bar to bar to drink and to try and pick up some dates. Jft j|t “3. That the Plaintiff became intoxicated, sick and sleepy due to the drinks he had consumed during the evening; that the Plaintiff knew that the Defendant had consumed as many or more drinks as had the Plaintiff; that both the Plaintiff and the Defendant were intoxicated. * # * “5. That after leaving the last bar where the Plaintiff and Defendant had been drinking, until the bars were closed, and as the Plaintiff and Defendant made their uncertain way home, the Plaintiff had the Defendant stop the vehicle because the Plaintiff had to vomit; that after such act of vomiting, the Plaintiff voluntarily re-entered the vehicle driven by the Defendant for the ride home and the accident occurred shortly thereafter. *594 “7. That the Plaintiff was a guest in the vehicle driven by the Defendant during the entire course of their evening’s travels and adventure and the Plaintiff chose to remain the Defendant’s guest in Defendant’s vehicle on the trip home and further chose to re-enter such vehicle, after the same had been stopped to permit the Plaintiff to vomit, to continue the trip home.” ■The foregoing language convinces me that the trial judge weighed the evidence and arrived at a result different from that of the jury which had also weighed the evidence. ■ The plaintiff-appellant assigns that the trial court erred in sustaining the appellee’s motion for a new trial and devotes his entire argument to the theory that the court granted the motion for a new trial on the grounds “the verdict of the jury is not sustained by sufficient evidence.” Applying the theory of the plaintiff-appellant, we are in the position of a referee between the trial court and the jury. I do not believe that such is the proper function of this court in considering the action of the trial court in sustaining a motion for a new trial. As I view it, the function of this court is to determine from the record the basis on which the trial court sustained the motion. This must be determined from the reasons assigned by the trial court. The language of the trial judge in this case, as hereinabove set out, in my opinion leads to the conclusion that the court in effect found the verdict of the jury to be contrary to law. This was one of the assignments in the motion for a new trial. I do not think that plaintiff-appellant has presented this court with an argument approaching such an interpretation of the trial judge’s reasons. However, giving full credit to the scope of the plaintiff-appellant’s argument, I do not believe that he has sustained the burden on appeal of convincing this court that the action of the trial judge in sustaining the motion for a new trial was in violation of the tests laid down in Bailey v. Kain *595 (1964), 135 Ind. App. 657, at 662-663 , 192 N. E. 2d 486, at 488 (Transfer denied), and followed in White v. Bardach (1968), 143 Ind. App. 586 , 241 N. E. 2d 866, at 869-870 , 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 has been made by the appellant. [Citing authorities.] “On consideration of a motion for a new trial, the trial judge has an imperative obligation to weigh the conflicting evidence. [Citing authorities.] “On a motion for a new trial it must clearly appear to the trial judge that substantial justice has been done and, if in his opinion the preponderance of the evidence is against the verdict, it is his duty to grant the new trial. [Citing authorities.] “We will be hesitant to overrule a trial court in granting a motion for new trial for the reason that there are strong presumptions in favor of the trial court’s action, and it is therefore a sound precedent which dictates that this court should be reluctant to second guess a trial court in granting a motion for new trial. [Citing authorities.]” The failure, therefore, of plaintiff-appellant to demonstrate to my satisfaction that the trial court violated those duties enjoined upon it by the decisions of the Supreme Court of Indiana and by this court necessitates an affirmance of the decision of the trial court. The decision should be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735053. Public record. Not legal advice.