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 the Eighth Judicial District, 

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: WR 12 lgn 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment entered in the district 

court of the eighth judicial district, Cascade County, Hon, Truman 

G, Bradford presiding. Plaintiff Glen L, Hellickson 111, brought 

action to recover money allegedly due under a contract with defendant Barrett Mobile Home Transport, Inc. Trial without a jury 

began on October 29, 1971. Judgment for plaintiff was entered on 

February 16, 1972. Plaintiff appeals from the judgment, except 

that portion making an award to plaintiff, 

Defendant is a 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 to another. 

In January 1964, defendant engaged plaintiff to tow mobile 

home units with lai in tiff's truck, The parties entered into a 

leasing agreement, on a form provided by the state of North Dakota, 

whereby plaintiff leased his 1963 Ford truck to defendant at the 

rate of $50 per month. The agreement was for a term of one year 

from the date of execution and on a month to month 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 to use 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. Essentially when 

the agreement began, plaintiff was to receive 85% of the revenue 

derived from the operation of plaintiff's truck in hauling mobile 

homes for defendant, less certain deductions. 
The trial court found that on or about 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 interstate hauls, defendant's drivers 

were paid on a mileage scale based on cents per mile. 

While employed by defendant, plaintiff operated a terminal 

for defendant's business in Great Falls. The parties had an oral 

agreement for the reimbursement of certain costs in connection 

with the operation of the terminal. Plaintiff claimed certain 

amounts were still owed to him for the operation of the terminal, 

along with other items. Defendant maintained that either all 

items had been paid or were offset by amounts owed to defendant 

by plaintiff. Other items of disagreement will be considered 

later in this opinion, 

Plaintiff and defendant mutually terminated their agreements in October or November 1965, Plaintiff filed his first 

complaint in June 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 still owing to plaintiff, he appeals. 

Plaintiff raises some questions concerning modification 

of a written agreement by oral testimony. Basically, hwever, 

the controlling issue is plaintiff's third issue: Are the findings 

of fact supported by the evidence? 

The trial court issued thorough findings of fact on a 

complicated, complex, and conflicting factual situation. Collateral 

issues raised are directly dependent upon our duty in considering 

those findings, 

A review of the rules pertaining to the function of an 

appellate court in situations such as is involved here is appropriate. In Hornung v. Lagerquist, 155 Mont. 412, 420, 473 P.2d 
541, this Court said: 

It Our duty in reviewing findings of fact in a 

civil action tried by the district court without 

a jury is confined to determining whether 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: State Highway 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,, Mon t . Y 496 P,2d 1161, 29 St. 

Rep, 357, 360. 

The judgment of the trial court sitting without a jury 

has the same effect as a verdict of a jury. State v. Naughton, 

103 Mont. 306, 310, 63 P.2d 123. Certain presumptions aid us in 

considering the findings of fact. The findings of the trial 

court and the judgment based thereon are presumed correct. Nat, 

Farmers Union Prop, v. Gen. Guaranty Ins., 150 Mont, 297,301, 434 

P.2d 708; Christensen v. Hunt, 147 Mont. 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, 142 Mont. 536, 541, 

385 P. 2d 272. However, while the presumptions is in plaintiff's 

favor, he is also the appealing party and as such, the burden is 

upon him to overcome the presumption of the correctness of the 

trial court's findings of fact, Nissen v, West Const, Equip,Co., 

133 Mont. 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 to be most believable 

to the trial judge bear particular signficance. The credibility 

and weight given the witnesses, however, is not for this Court to 

determine. This is a primary function of a trial judge sitting 

without a jury; it is of special consequence where the evidence is 
conflicting. Eliason v, Eliason, 151 Mont. 409, 416, 443 P.2d 884; 

Strong v. Williams, 154 Mont. 65, 68, 460 Pe2d 90; Dutton v. Rocky 

Mtn, Phosphates, 151 Mont. 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 all but three of the findings issued by the trial 

court, Plaintiff argued that virtually all of the findings excepted to were not supported by the evidence, 

We do not find it necessary to delineate all the evidence 

in support of each finding of fact, we are concerned here only with 

the major disagreements. Wherever the testimony is directly conflicting, we presume the trial judge to be correct. Only he had 

the opportunity to observe the demeanor, candor and spontaneity 

of the witnesses. All minor points are within the legal maxim 

codified by section 49-125, R.C.M. 1947: "The law disregards 

trifles. I I 

Here, one major disagreement was whether the lease agreement rental of $50 per month was in addition to the compensation 

received for hauling mobile homes, as plaintiff contended; or 

whether it was 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 in defendant'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 in relating his version 

of the same oral agreement that the trial judge could readily have 

given his testimony little weight. On the other hand, defendant's 

witness, Earl Wallace, who was present when the employment agreement 

between plaintiff and defendant was initially discussed, substantiated defendant's recollection. Plaintiff knew from his very 

first pay report that the $50 per month rental was a part of, not 

in addition to, the regular compensation. Yet, he did little, if 
anything, to gain what he claimed at trial was due, The trial 

court had substantial evidence to find: 

"That during the entire period from January, 

1964 through October, 1965 the oral arrangement extant between plaintiff and defendant 

contemplated that the commissions paid by the 

latter to the former would include and not be 

in addition to the rental f: 9: *". 

Another element of controversy concerned responsibility 

for repairs. Plaintiff contended at trial that defendant was 

obligated for repairs on the truck. True, the lease agreement 

form did indeed impose the obligation for repairs on defendant, 

However, at no time until the commencement of this action in 

June 1966, did plaintiff ever present any claim for repair expenses to defendant, In about April 1965, plaintiff sold his 

1963 Ford truck and the lease agreement on that vehicle terminated; 

no new agreement was ever executed. The evidence= inconclusive 

as to whether the repair expenses claimed due were for the truck 

in the original agreement. Further, it is not entirely clear 

whether any repair expenses were attributable to the operation of 

plaintiff's truck while in defendant's service or during plaintiff's 

own personal use. The trial court found plaintiff acquiesced to 

the oral modification that defendant was not obligated for repair 

expenses to either of plaintiff's trucks. It concluded that plaintiff was now estopped from recovering those claims. We agree. 

The final major disagreement concerns the actual compensation received for hauling 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, there was 

evidence from which the trial judge could have found that the notice 

of the change had been communicated to all terminal offices. 

It was established by defendant's witness, Wallace, that 

at the time the employment agreement was first discussed defendant's 
president informed plaintiff the compensation might fluctuate 

during the course of employment. In any event, a letter from 

plaintiff to defendant indicated plaintiff was aware of the 

change by May 13, 1964, Yet, plaintiff continued to work for 

defendant; this employment even continued through a subsequent 

rate change. This course of conduct was sufficient, we believe, 

to preclude recovery for the compensation claim. The rule 

stated in 53 Am Jur 2d, Master and Servant, $ 73, p. 148, is 

applicable : 

"Where, however, there is no definite term of 

employment fixed by contract, [as in this case] 

a notice by the master that for the future he 

will pay less wages to the servant and the continued service thereafter of the servant without 

objection, creates a new contract based upon 

sufficient considera tion, It 

We find no fault in the conclusions of law rendered by 

the trial court. Plaintiff's appeal does not concern itself with 

legal issues, but basically is on factual grounds. We cannot retry 

factual determinations made by the trial court. We are further 

persuaded that the monetary award was correct by the fact that 

plaintiff failed to remit certain revenues collected by him for 

defendant and due defendant, 

There is ample justification in the record for the trial 

court's decision. 

The judgment of the trial court is affirmed, 

I