Hacker v. Dan Young Chevrolet, Inc., 2--273A26

• Citation: 304 N.E.2d 552,159 Ind.App. 28
• Decision Date: 19 December 1973
• Docket Number: No. 2--273A26,2--273A26
• Parties: Noble HACKER, Plaintiff-Appellant, v. DAN YOUNG CHEVROLET, INC., Defendant-Appellee.
• Court: Court of Appeals of Indiana

Page 552

304 N.E.2d 552

159 Ind.App. 28

Noble HACKER, Plaintiff-Appellant, v. DAN YOUNG CHEVROLET, INC., Defendant-Appellee.

No. 2--273A26.

Court of Appeals of Indiana, Third District.

Dec. 19, 1973.

John T. Manning, David S. Walker, Indianapolis, for appellant.

Donald R. Anderson, Indianapolis, for appellee; Bose, McKinney & Evans, Indianapolis, of counsel.

HOFFMAN, Chief Judge.

Plaintiff-appellant Noble Hacker (Hacker) filed his complaint for damages for the value of his tools, which disappeared from the garage of defendant-appellee Dan Young Chevrolet, Inc. (dealer). Trial was to the court which entered its special findings of fact and conclusions of law and subsequently entered judgment thereon adverse to appellant-Hacker.

The facts most favorable to the appellee as disclosed by the record before us, are as follows: Hacker worked as a truck mechanic on a straight commission basis for the dealer and furnished his own tools. He was not required to furnish his own tools, but most mechanics did so to increase their productivity and, as a result, their income. Hacker, and each mechanic, locked their tools in heavy chests at night and left them on the dealer's premises.

During his employment, the mechanics' union that Hacker belonged to voted to strike against the dealer, and he agreed to honor the picket line. The first day of the strike, Hacker asked the dealer's service manager, Daniel Dowden (Dowden) what should be done about his tools during the strike. Dowden replied that they could be left on the dealer's premises, as a short strike was anticipated, or Hacker could remove them if he wished. The other mechanics were similarly advised by Dowden, and some were also told that their tools would be safe if left on the premises. Hacker and some other mechanics left their tools; the remaining mechanics removed their tools.

During the strike, the dealer hired a few non-union mechanics to work in its auto service area (auto shop), which is separate from the truck service area (truck shop) where Hacker worked. The truck shop was not in operation during the strike. Dowden allowed the new employees normal access to it, and left it otherwise unattended. However, the public was excluded from this area, and it was tightly secured at night. During this time, vehicles were sometimes driven through the truck shop to a rear lot, because this route avoided leaving the dealer's premises and driving partway around the block to re-enter the premises, and as a result eliminated two crossings of the picket line.

The strike was not as short as anticipated, and about two months later, while the strike was still in progress, Hacker was informed by the dealer that his tools had been lost or stolen. Due to this loss, Hacker was unable to return to work when the strike ended.

Hacker suffered a negative judgment below, and findings of fact and conclusions of law thereon were entered by the trial court pursuant to Rule TR. 52(A), Ind. Rules of Procedure. In its Finding No. 12, the trial court found that the dealer had not committed 'any negligence * * * with respect to plaintiff's (Hacker's) property * * *.'

The propriety of this finding is central to each of the issues presented for review in this appeal, therefore in the interests of clarity, this finding will be considered before the specific issues raised by Hacker. An examination of the basis of such finding and the standard of review it is subject to on appeal will clarify its relationship to the issues considered herein.

The evidence most favorable to the appellee and the reasonable inferences therefrom are sufficient to support this finding. The record shows that the dealer secured the truck shop each night by locking all doors and windows and cutting the power to its electric overhead doors. The rest of its premises were fenced, and the gates were locked and chained nightly. During the day, the truck shop area was closed to the public, as Hacker found when he attempted to enter the area. Further, Hacker was apparently satisfied with the security provided for his tools since he 'checked on them' six times during the strike and still elected to leave them on the dealer's premises. There was substantial evidence to support the finding.

When a finding pursuant to Rule TR. 52, Ind. Rules of Procedure, IC 1971, 34--5--1--1, is considered on appeal, this court must accept the ultimate facts as stated by the trial court if there is evidence to sustain them. Rule AP. 15(M), Ind. Rules of Procedure; Rule TR. 52(A), supra; First Nat. Bank of Mishawaka v. Kamm (1972), Ind.App., 283 N.E.2d 563. To overturn such a finding on appeal, the court must be satisfied that it is 'clearly erroneous.' Citizens Gas & Coke Utility Co. v. Wells (1971), Ind.App., 275 N.E.2d 323.

There was sufficient evidence presented at trial to enable the trial court to make its Finding No. 12. As a result, this finding cannot be said to be contrary to law because it is not contrary to the evidence. Furthermore, mindful of the presumption in favor of the finding, and after a careful examination of the...