### No, 12288 IN

### THE SUPREME COURT OF 

### THE STATE OF MONTANA 

### 1973

GLEN L. 

### HELLICKSON, 111, 

### Plafntiff and Appellant,

-VS

# - BARRETT MOBILE HOME 

### TEUNSPORT, INC., 

### Defendant and Respondent.

Appeal from: District Court 

### of theEighth JudicialDistrict, 

### Honorable 

### Truman G. 

### Bradford, Judge presiding. Counsel 

### of Record: For Appellant: 

### John C. 

### Hall argued, 

### Great Falls, Montana. For Respondent: Swanberg, Koby and Swanberg, Great Falls, Montana. Raymond 

### F, Koby argued, Great Falls, Montana.

Submitted: January 22, 1973 Decided: 

## WR12

## lgn

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

This 

### isan appeal from ajudgment entered in the district court of the eighthjudicial district, Cascade County, Hon, Truman G, Bradford presiding. Plaintiff Glen 

### L, Hellickson 111,brought action torecover money allegedly due under a contract with defendant Barrett Mobile Home Transport, Inc. Trialwithout a jury began on October 29, 1971. Judgment for plaintiff was entered on February 16, 1972. Plaintiff appeals from thejudgment, except that portion making an award toplaintiff, Defendant 

### isa Minnesota corporation doing business in Montana and other states, consisting mainly of transporting mobile homes in interstate and intrastate commerce. To carry on 

### its business defendant employs persons to drive truck units to tow the mobile homes from one location toanother. In January 1964, defendant engaged plaintiff to tow mobile home unitswith

## lai in tiff's truck, The parties entered intoa leasing agreement, on a form provided by the state of North Dakota, whereby plaintiff leased his 1963Ford truck to defendant atthe rate of 

### $50 per month. The agreement was for a term of one year from the date of execution and on a month tomonth basis thereafter, The agreement could be terminated by either party upon thirty days written notice to the other party. Although the truck was leased to defendant, plaintiff was touse the truck to carry out the terms of the employment agreement. The employment agreement between the two parties was oral, A greater portion of the controversy here concerns the 

### terms of that oral employment agreement, particularly since the terms of that agreement were altered from time to time. Essentiallywhen the agreement began, plaintiff was toreceive 

### 85%of the revenue derived from the operation of plaintiff's truck inhauling mobile homes for defendant, less certain deductions.The trialcourt found that on orabout May 

### 1, 1964, defendant changed the method of compensating 

### its drivers. The compensation

was changed from 85%to 75%and certain deductions were no longer made. Around June 1965, the general scheme of compensation was again changed so that, for interstatehauls, defendant's drivers

were paid on a mileage scalebased on cents per mile. While employed by defendant, plaintiff operated a terminal for defendant's business in Great Falls. The partieshad an oral agreement for the reimbursement of certain costs inconnection with the operation of the terminal. Plaintiff claimed certain amounts were 

### stillowed tohim for the operation of the terminal, alongwith other 

### items. Defendant maintained that either all items had been paid orwere offsetby amounts owed todefendant by plaintiff. Other items of disagreement willbe considered later inthis opinion, Plaintiff and defendant mutually terminated their agreements inOctober or November 1965, Plaintiff filedhis first complaint inJune 1966. After briefs and proposed findings of fact and conclusions of law were filed, the court entered 

### its findings of fact and conclusions of law awarding plaintiff judgment in the amount of $415.58, plus costs and interest from November 

### 1, 1965. Because plaintiff contends that additional sums were conclusively established as 

### stillowing toplaintiff, he appeals. Plaintiff raises some questions concerning modification of a written agreement by oral testimony. Basically, hwever, the controlling issue 

### isplaintiff's third issue: Are the findings of fact supported by the evidence? The trialcourt issued thorough findings of fact on a complicated, complex, and conflicting factual situation. Collateral issues raised are directlydependent upon our duty inconsidering those findings, A review of the rules pertaining to the function of an appellate court in situations such as 

### is involved here 

### is appropriate. InHornung 

### v. Lagerquist, 155 Mont. 412, 420, 473 P.2d541, this Court said:

ItOur duty inreviewing findings of fact in a civilaction tried by the district court without a jury 

### is confined to determiningwhether there is substantial credible evidence to support them. St. Highway Com'n v. West Great Falls Flood Control and Drainage District, 155 Mont. 157, 468 P.2d 753, 27 St.Rep. 320, and cases therein sited.It See also: StateHighway Comm'n 

### v, Vaughan, 155 Mont. 277, 281,

The meaning of "substantial credible evidencet'was thoroughly considered recently in Staggers v. United States Fidelity & Guaranty Co,, Mont

# . Y 496 P,2d 1161, 29 St. Rep, 357, 360. The judgment of the trialcourt sittingwithout a jury has the same effect as a verdict of a jury. Statev. Naughton, 103Mont. 306, 310, 63 P.2d 123. Certain presumptions aid us in considering the findings of fact. The findings of the trial court and thejudgment based thereon arepresumed correct. Nat, Farmers Union Prop, v. Gen. Guaranty Ins., 150 Mont, 297,301, 434 P.2d 708; Christensen v. Hunt, 147Mont. 484, 490, 414 P.2d 648. In examining the evidence, we must veiw the testimony in a light most favorable to the prevailing party, Estate of Hosova, 143 Mont. 74, 78, 387 P.2d 305; Holland v. Konda, 142Mont. 536, 541, 385 P.2d 272. However, while the presumptions 

### is in plaintiff's favor, he 

### isalso the appealing party and as such, the burden 

### is upon him to overcome the presumption of the correctness of the trialcourt's findings of fact, Nissen v, 

### West Const, Equip,Co., 133Mont. 143, 146, 320 P.2d 997. Here, the credibility of the witnesses 

### is of prime importance. Since only two people other than plaintiff and defendant's president testified, the witnesses found tobe most believable to the trialjudge bear particular signficance. The credibility and weight given thewitnesses, however, isnot for this Court to determine. This 

### is a primary function of a trialjudge sitting without a jury; it 

### is of special consequence where the evidence isconflicting. Eliason v, Eliason, 151Mont. 409, 416, 443 P.2d 884; Strongv. Williams, 154Mont. 65, 68, 460 Pe2d90; Dutton v. Rocky Mtn, Phosphates, 151Mont. 54, 

### 71, 438 P.2d 674. In light of the principles stated above, we consider the findings of fact contested by plaintiff and determine whether substantial evidence exists to support them. Plaintiff excepted generally to allbut three of the findings issued by the trial court, Plaintiff argued that virtually allof the findings excepted towere not supportedby the evidence, We do not find itnecessary to delineate allthe evidence in support of each finding of fact, we areconcerned here only with the major disagreements. Wherever the testimony 

### is directly conflicting, we presume the trialjudge tobe correct. Only hehad the opportunity to observe the demeanor, candor and spontaneity of thewitnesses. Allminor points arewithin the legal maxim codified by section49-125, 

### R.C.M. 1947: "The law disregards trifles.II Here, one major disagreement was whether the lease agreement rental of $50 per month was inaddition to the compensation received forhauling mobile homes, asplaintiff contended; or whether itwas a part of the compensation, as defendant contended. Although plaintiff maintained at trial that the $50 per month amounts were due him from the inception of the employment agreement, plaintiff acquiesced indefendant's manner of payment for twentytwo months. He made no written demand on defendant for the alleged amount due. Richard Ward, plaintiff's witness in support of his contention, exhibited such uncertainty inrelatinghisversion of the same oral agreement that the trialjudge could readilyhave given his testimony littleweight. On the otherhand, defendant's witness, EarlWallace, who was present when the employment agreement between plaintiff and defendant was initiallydiscussed, substantiated defendant's recollection. Plaintiff knew from hisvery firstpay report that the $50 per month rentalwas a part of, not inaddition to, the regular compensation. Yet, he did little, ifanything, to gain what he claimed attrialwas due, The trial court had substantialevidence to find: "That during the entireperiod from January, 1964 through October, 1965 the oralarrangement extant between plaintiff and defendant contemplated that the commissions paid by the latter to the former would include and not be inaddition to the rental f: 9: 

## *". Another element of controversy concerned responsibility for repairs. Plaintiff contended attrial that defendant was obligated for repairs on the truck. True, the lease agreement form did indeed impose the obligation for repairs on defendant, However, atno time until the commencement of this action in June 1966, didplaintiff ever present any claim for repair expenses to defendant, In about April 1965, plaintiff soldhis 1963 Ford truck and the lease agreement on that vehicle terminated;

no new agreement was ever executed. The evidence= inconclusive

as towhether the repair expenses claimed due were for the truck in the original agreement. Further, it 

### isnot entirely clear whether any repair expenses were attributable to the operation of plaintiff's truckwhile indefendant's service or during plaintiff's

own personal use. The trialcourt found plaintiff acquiesced to the oral modification that defendant was not obligated for repair expenses toeither of plaintiff's trucks. It concluded that plaintiffwas now estopped from recovering those claims. We agree. The finalmajor disagreement concerns the actual compensation received forhauling mobile homes. Plaintiff conceded the agreement could indeed be changed from an 85%compensation rate to 

### 75%, and then to a mileage basis, However, plaintiff asserts these changes could not be made unilaterally; consent to the changes must be mutual and must be communicated to the other party, While plaintiff claimed he was not notified of the change, therewas evidence from which the trialjudge could have found that the notice of the change had been communicated to allterminal offices. It was established by defendant's witness, Wallace, that atthe time the employment agreement was firstdiscussed defendant'spresident informed plaintiff the compensation might fluctuate during the course of employment. In any event, a letter from plaintiff todefendant indicated plaintiff was aware of the change by May 13, 1964, Yet, plaintiff continued towork for defendant; this employment even continued through 

### a subsequent ratechange. This course of conduct was sufficient, we believe, topreclude recovery for the compensation claim. The rule stated in53Am Jur 2d, Master and Servant, $ 73, p. 148, is applicable: "Where, however, there 

### isno definite term of employment fixed by contract, [as inthis case] a notice by the master that for the futurehe 

### willpay lesswages to the servant and the continued service thereafter of the servant without objection, creates a new contract based upon sufficient consideration,It We find no fault in the conclusions of law rendered by the trialcourt. Plaintiff's appeal does not concern itselfwith legal issues, but basically 

### is on factual grounds. We cannot retry factual determinations made by the trialcourt. We are further persuaded that the monetary award was correct by the fact that plaintiff failed toremit certain revenues collectedby him for defendant and due defendant, There 

### isample justification in the record for the trial court's decision. The judgment of the trialcourt isaffirmed, I