Coachmen Industries, Inc. v. Crown Steel Co.

• Decision Date: 29 August 1991
• Docket Number: No. 20A03-9104-CV-106,20A03-9104-CV-106
• Citation: 577 N.E.2d 602
• Parties: COACHMEN INDUSTRIES, INC., Appellant-Defendant Below, v. CROWN STEEL COMPANY, Appellee-Plaintiff Below.
• Court: Indiana Appellate Court

Page 602

577 N.E.2d 602

COACHMEN INDUSTRIES, INC., Appellant-Defendant Below, v. CROWN STEEL COMPANY, Appellee-Plaintiff Below.

No. 20A03-9104-CV-106.

Court of Appeals of Indiana Third District.

Aug. 29, 1991.

T. Michael Pangburn, Elkhart, for appellant-defendant.

Thomas R. Hamilton, Daniels, Sanders & Pianowski, Elkhart, for appellee-plaintiff.

STATON, Judge.

Coachmen Industries, Inc. (Coachmen) appeals an adverse judgment following a bench trial in an action on account brought by Crown Steel Co. (Crown). Crown sued Coachmen to recover the value of a load of steel delivered to Coachmen's Auranco division in Elkhart, Indiana. After Coachmen rejected the load as defective, Crown made arrangements to resell its steel, with Coachmen agreeing to hold the material for Crown. Crown located a buyer for the steel, but when a trucking company arrived to pick up the material, the steel was not on Coachmen's premises.

The trial court entered an amended judgment for Crown concluding that Coachmen, as a gratuitous bailee, had a duty of "slight care" over the material in its possession, and that Coachmen breached that duty by failing to exercise the appropriate standard of care. Coachmen now presents three issues for our review, which we consolidate and rephrase as: Whether the judgment of the trial court is clearly erroneous.

As a preliminary determination, we address Crown's contention that the judgment should be summarily affirmed for Coachmen's failure to comply with the Rules of Appellate Procedure. Although Crown's assertion is not without validity, ¹ we will address the merits of an appeal when an appellant has substantially complied with the appellate rules. In re Marriage of Moser (1984), Ind.App., 469 N.E.2d 762. Dismissal or summary affirmance is warranted in cases where a party to an appeal commits a flagrant violation of the rules. Grimm v. F.D. Borkholder Co., Inc. (1983), Ind.App., 454 N.E.2d 84. The deficiencies in the record and appellant's brief cited by Crown as grounds for affirmance are not so glaring as to prevent this court from identifying and addressing the issues preserved for review. Therefore, we deny Crown's request for summary affirmance.

The trial court in this case entered specific findings of fact and conclusions of law, pursuant to Ind. Rules of Procedure, Trial Rule 52. Our standard of review in such cases entails the following two-tiered analysis: we first determine whether the evidence supports the findings, and then, we determine whether the findings support the judgment. Kaminszky v. Kukuch (1990), Ind.App., 553 N.E.2d 868, 870, trans. denied. We may not reweigh the evidence nor reassess the credibility of the witnesses, and we will not set aside the fact-finding of the trial court unless it is clearly erroneous. Brancheau v. Weddle (1990), Ind.App., 555 N.E.2d 1315, 1317. A judgment is clearly erroneous where a review of the record leaves us with a firm conviction that a mistake has been made, Indiana Dep't. of Correction v. Stagg (1990), Ind.App., 556 N.E.2d 1338, 1341, trans. denied, such as where there is a total lack of supporting evidence or the evidence is undisputed and leads solely to a contrary conclusion. Brancheau, supra, at 1317.

The parties to this appeal do not dispute the finding that Coachmen held the steel for the sole benefit of Crown. Because Coachmen, as bailee, received no benefit from this arrangement, it was obligated to exercise only slight care in protecting the material from injury. Norris Automotive Service v. Melton (1988), Ind.App., 526 N.E.2d 1023, 1026. A bailee held to the lesser standard of slight care is answerable only for gross neglect. Bronnenburg v. Charman (1881), 80 Ind. 475; Northern Indiana Slurry Seal, Inc. v. K & K Truck Sales, Inc. (1975), 167 Ind.App. 440, 338 N.E.2d 704. Gross negligence is described as:

an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.... Indifference to present legal duty and utter forgetfulness of legal obligations, so far as other persons may be affected, and a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence.

Black's Law Dictionary 932 (5th ed.1979).

In its amended judgment, ² the trial court determined that:

1. Auranco Enterprises is a division of Coachmen;

2. Auranco and Crown made an agreement for the purchase and sale of approximately 51,300 pounds of steel;

3. On May 27, 1988, at Crown's request, Tompkins Trucking Lines, Inc. ("Tompkins") delivered the steel, in one truckload consisting of eight bundles, to Auranco's plant in Elkhart;

4. Upon its arrival, Don Mason and Greg Desimone, employees of Auranco, inspected the steel;

5. Acting within the scope of his employment, Mason wrote "Rejected 5-27-88" on the bill of lading and delivery receipt which accompanied the steel;

6. Mason's actions on behalf of Auranco "rejected" the steel within the meaning of the Indiana version of the Uniform Commercial Code;

7. Crown was notified of Auranco's rejection of the steel May 27, 1988;

8. During a telephone conversation with Crown's employee Morton Trotski, Desimone, acting within the scope of his employment, agreed to hold the steel at Auranco's plant for a later pickup by or for benefit of Crown;

9. Desimone wrote "Held for reconsignment, 5-27-88" on the delivery receipt;

10. Mason unloaded the steel into Auranco's storage area;

11. Shortly thereafter, Crown resold the steel for $13.45 per hundredweight, or a total of $6,899.85;

12. Crown engaged Tompkins to pick up the steel at Auranco's plant and to deliver the steel to the new purchaser 13. When Tompkins's truck arrived, the steel could not be located at Auranco's plant;

14. Neither Coachmen nor Auranco returned the steel to Crown and neither Coachmen nor Auranco paid Crown for the steel;

15. Auranco had previously rejected steel sold by Crown and had held the rejected shipments pending reconsignment; and

16. On previous occasions, Auranco, after initially rejecting shipments of steel, later accepted and used the shipments.

Record, pp. 296-97.

Coachmen first argues that these findings are defective because they do not include a specific finding on Coachmen's alleged breach of its obligation to exercise slight care with respect to the bailment. Inasmuch as the purpose of special findings is to provide parties and the reviewing court with the theory on which the trial court decided the case, Coachmen opines, the omission inhibited its ability to effectively preserve error for review. See Malbin & Bullock, Inc. v. Hilton (1979), 180 Ind.App. 193, 387 N.E.2d 1332. However, in the same breath, Coachmen acknowledges that: "The theory upon which this case was decided, as disclosed by the trial court's February 6, 1991 special findings of fact and conclusions of law, was that Coachmen (as a gratuitous bailee) failed to exercise the required measure of SLIGHT CARE." Appellant's Brief, p. 14. Moreover, Coachmen is incorrect when it asserts the trial court failed to issue a finding on the existence of breach. After reciting the above findings, the trial court stated as follows:

On the basis of the foregoing, the Court concludes as follows:

* * * * * *

C. The measure of care required of Auranco was that imposed upon a bailee under a bailment for the sole benefit of the bailor, i.e., "slight care";

D. Auranco failed to exercise the required measure of care[.]

Record, p. 297.

Contrary to Coachmen's assertion, the establishment of breach in this case is not "added to a special finding of fact by presumption, inference or intendment." Malbin & Bullock, supra, 387 N.E.2d at 1334. The existence of breach is expressly and clearly articulated, albeit in the portion of the judgment containing conclusions of law. The argument that facts not stated in the findings cannot be supplied...