Opinion Concurring in Part, Dissenting in Part
Sullivan, J.I concur in that portion of the decision which holds that the Court erred in awarding damages for mental anguish. That very error, however, in my view,, compels reversal of the judgment and remand of the cause for a new trial solely with respect to the issue of compensatory damages for injury to personal property.
In the case before us, affirmance of the judgment to the extent of $4,000 presupposes that the' Court below, as 'the trier of fact, believed Plaintiff’s property damage to be precisely in the amount which Plaintiff stated to be the loss of value to his automobile, and that the trial court awarded only $1,000 for mental anguish. I do not believe we are empowered to indulge that supposition.
The judgment rendered below is not divisible or severable so as to permit our modification of the judgment without invading the province of the trier' of fact. See Superior Laundry Co. v. Rose (1923), 193 Ind. 138, 144, 139 N.E. 142; Matthews v. Bowser (1964), 135 Ind. App. 513, 517, 195 N.E. *3342d 494. Cf. Chicago, I & L Ry. v. Brown (1901), 157 Ind. 544, 549, 60 N.E. 346, 348; Halstead v. Stahl (1911), 47 Ind. App. 600, 602, 94 N.E. 1056. I do not view the evidence with respect to injury to personal property to be so clear and unrebutted as to authorize us to fix the proper damages. See Weenig v. Wood (1976), 169 Ind. App. 413, 349 N.E.2d 235, 257, quoting 4 Harvey and Townsend, Indiana Practice at 152-53. It is at least arguable that certain evidence of record, to the effect that Smith indicated a willingness to trade in his damaged 1970 Toronado plus $1,000 cash for a 1971 Toronado, would permit a reasonable trier of fact to fix Smith’s recoverable damages (measured by the damaged car’s value) at less than $4,000.
The majority here views the “size of the judgment” as an obvious acceptance by the trial court of Smith’s conclusory statement that he was damaged $4,000 “by just plain loss of value.” I disagree. It appears to me as likely, if not more likely, that the trial court attributed more value significance than $1,000 to Smith’s substantial inconvenience and legitimate consumer displeasure, i.e., mental anguish.
Accordingly, I would reverse and remand the cause for new trial solely upon the issue of compensatory damages in such amount as will compensate claimant for the diminution in value occasioned to Plaintiff’s automobile by the acts of Defendant Stuart.
NOTE. — Reported at 357 N.E.2d 247.