concurring opinion on petition for rehearing.
I concur in the results reached in the per curiam opinion denying rehearing but I deem the question here of importance in all appeal cases where the trial court has granted a motion for a new trial.
Appeal in Indiana following the granting of a motion for new trial is of comparative recent origin. In 1959 the General Assembly for the first time authorized an appeal from the granting of such motion. Prior to that the question could *244be raised only after the case was retried and final judgment rendered.
Acts 1959, ch. 25, §1, p. 75, § 2-3201 (b), Burns’ 1946 Repl.
Since that time this court has set out some basics.
a. Where a new trial is granted such ruling will be reversed only on showing: (1) There was a plain abuse of judicial discretion; (2) Flagrant injustice has been done the complaining party; (3) A very strong case for relief.
Topper v. Dunn (1961), 132 Ind. App. 306, 309, 177 N. E. 2d 382.
b. A requirement is imposed on the trial court to state in writing its reasons for the decision when a motion for a new trial is sustained.
Rife, etc. v. Karns (1962), 133 Ind. App. 226, 227, 181 N. E. 2d 239;
Newsom v. The Pennsylvania Railroad Co. et al (1962), 133 Ind. App. 582, 584, 181 N. E. 2d 240;
Rans v. The Pennsylvania Railroad Co. (1962), 133 Ind. App. 592, 595, 181 N. E. 2d 644;
Bailey v. Kain (1963), 134 Ind. App. 238, 239, 187 N. E. 2d 366.
In this matter appellant, who received judgment below from the trial judge without jury, appealed the decision granting a motion for a new trial.
This court (1/10/66, 212 N. E. 2d 794, 7 Ind. Dec. 351) affirmed the judgment granting a new trial on motion of appellees, on the theory that no question was presented to the Appellate Court because the evidence was not set out in the record.
Thereafter our attention was called to the fact that the trial court had not stated its reasons for granting the motion. Consistent with previous holdings (4/22/66, 215 N. E. 2d 876, 8 Ind. Dec. 205), the trial court was asked to state *245its specific reasons for sustaining the motion. The trial court has reported its reasons and I interpret them as tantamount to saying that there was a binding prior adjudication of the controversy. Whether or not the reason given is valid seems to be a question of law and fact. Without a transcript of the evidence we cannot now say the trial court erroneously granted the motion for new trial. Therefore the final judgment of the trial court should be affirmed and the new trial granted.
Appellant in support of his petition for rehearing reduces his argument to a bold “proposition” (set out in the per .curiam opinion) to the effect that where a matter has been tried without a jury a new trial cannot be granted unless there develops “some new fact, item of evidence or a later ruling of an appellate tribunal. . . .” That statement is too limited.
I can perceive where a ruling on a plea in abatement, or other pretrial rulings might be such error as would require the trial court to subsequently grant a motion for new trial. In such instances it would not always be necessary to furnish this court with a transcript of the evidence to perfect an appeal, and for that reason perhaps this court should not have affirmed the judgment until the trial court stated its reasons for granting the motion.
Also contrary to appellant’s proposition, an error at law occurring at the trial (as a ruling on evidence) might also require a trial court to grant a motion for new trial. A transcript of the evidence would then be required.
For these reasons I concur in denial of the petition for rehearing.
Note. — Reported in 212 N. E. 2d 794. On rehearing 215 N. E. 2d 876. Rehearing denied 221 N. E. 2d 367.