
    INDIANA & MICHIGAN ELECTRIC COMPANY and American Electric Power Service Corporation, Appellants (Defendants and Counterclaimant Below), v. TERRE HAUTE INDUSTRIES, INC., Appellee (Plaintiff and Counterclaim Defendant Below), and Insurance Company of North America, Appellee (Counterclaim Defendant Below).
    No. 1-882 A 245.
    Supreme Court of Indiana.
    July 28, 1988.
    Thomas W. Yoder and C. Erik Chicke-dantz, Livingston Dildine Haynie & Yoder, Fort Wayne, James G. McDonald, Jr., Princeton, for appellants.
    Hansford C. Mann, Max E. Goodwin, Mann, Chaney, Johnson, Goodwin & Williams, James 0. McDonald, Everett, Everett, McDonald & Ireland, Terre Haute, Charles R. Nixon, Robert J. Fair, Princeton, for appellee Terre Haute Industries, Inc.
    Gus Sacopulos, Sacopulos Johnson and Hahn, Terre Haute, for appellee Ins. Co. of North America.
   ON CIVIL PETITION TO TRANSFER

Petition to Transfer Denied.

DICKSON, Justice,

dissenting from the denial of appellee’s petition to transfer.

By previous separate order dated March 7, 1988, denying the petition to transfer filed on behalf of Indiana & Michigan Electric Company and American Electric Power Service Corporation, this Court let stand the trial court’s judgment and award of compensatory damages in favor of plaintiff-appellant Terre Haute Industries, Inc. (T.H.I.) resulting from the breach of contract by defendants-appellants. The Court of Appeals had affirmed this portion of the judgment. Indiana & Michigan Electric Co. v. Terre Haute Industries, Inc. (1987), Ind.App., 507 N.E.2d 588. With today’s decision to deny T.H.I.’s petition to transfer, the majority declines to reinstate the trial court’s punitive damage award which was subsequently reversed by the Court of Appeals. Id.

The case was presented to the trial court without a jury. It was an intense, hotly-contested courtroom battle often testing the patience, control, and wisdom of Judge Walter Palmer, who presided over the trial in admirable fashion. The presentation of evidence consumed 81 days of trial occurring over a period of 25 weeks. Closing arguments occurred four months later. The appellate record contains 138 volumes consisting of over 37,000 pages. Judge Palmer’s resulting judgment order includes 31 detailed and thoughtful findings of fact.

Appellate review of the trial court judgment is guided by the provisions of Trial Rule 52(A):

On appeal of claims tried by the court without a jury or with an advisory jury, at law over in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

This standard of “clearly erroneous” is further emphasized in Appellate Rule 15(N)(6):

A verdict, finding, judgment, order or decision shall be reversed upon appeal as not supported by or as contrary to the evidence only when clearly erroneous, and due regard shall be given the opportunity of the finder of fact to judge the credibility of witnesses, [emphasis added]

Illustrative of the wisdom of TR 52(A) and AR 15(N)(6), the experienced trial judge here was clearly in a unique position to assess credibility of witnesses and to synthesize the evidence from the lengthy and complex trial. Particularly under these circumstances, it was inappropriate for the Court of Appeals to impose its reinterpretation of the evidence and to modify the trial court judgment.

Judge Palmer’s decision should survive appellate review in this case. His award of punitive damages was not “clearly erroneous” and thus not subject to reversal on appeal.

SHEPARD, C.J., concurs.  