                                    No. 12398

       I N THE SUPREME COURT O THE STATE O M N A A
                              F           F OTN

                                          1973



HAROLD T. RICHARDSON,

                            P l a i n t i f f and A p p e l l a n t ,

       -vs -

HOWARD MOTORS, I N C . ,       a corporation,

                            Defendant and Respondent.



Appeal from:        D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
                    Honorable F r a n k E . B l a i r , J u d g e p r e s i d i n g .

Counsel o f Record:

     For Appellant :

            L o b l e , P i c o t t e , L o b l e , Pauly and S t e r n h a g e n ,
             Helena, Montana
            W i l l i a m St e r n h a g e n a r g u e d , H e l e n a , Montana

     F o r Respondent :

            C o r e t t e , Smith and Dean, B u t t e , Montana
            R . D . C o r e t t e J r . a r g u e d , B u t t e , Montana
            S c h u l z and D a v i s , D i l l o n , Montana



                                                Submitted:              November 27, 1973

                                                    Decided :           ~ E 2c0 1973
Filed :   MC 2 0 1 n
                  g
M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court.

         This i s a damage a c t i o n f o r personal i n j u r i e s s u f f e r e d by
a business i n v i t e e i n a s l i p and f a l l on t h e showroom f l o o r of an
automobile s a l e s and r e p a i r agency i n D i l l o n , Montana.              The d i s -
t r i c t c o u r t of Beaverhead County, t h e Hon. Frank E. B l a i r , d i s t r i c t
judge s i t t i n g without a jury, entered f i n d i n g s of f a c t , conclusions
of law, and judgment f o r t h e defendant automobile agency.                            From
t h i s judgment, p l a i n t i f f appeals.
         P l a i n t i f f i s Harold T. Richardson, a salesman f o r a postage
meter s e r v i c e , who received i n j u r i e s i n a f a l l on t h e showroom
f l o o r a s he was leaving t h e premises a f t e r a business c a l l .                  De-
fendant i s Howard Motors, Inc.,              t h e automobile s a l e s agency and
r e p a i r business on whose premises p l a i n t i f f f e l l .
         The accident occurred on June 19, 1968, a t about 9:30 a.m.
P l a i n t i f f entered t h e premises through a door on t h e south s i d e
of t h e b u i l d i n g f o r t h e purpose of doing business w i t h defendant
concerning a postage meter.               He walked a c r o s s t h e showroom f l o o r
t o a counter where he had a s h o r t d i s c u s s i o n with t h e bookkeeper,
Mrs. Avis Hoerning.          W h i l e waiting f o r Jack Howard, t h e owner, t o
r e t u r n , p l a i n t i f f walked around t h e showroom f l o o r and looked a t
a car.     T h e r e a f t e r , p l a i n t i f f and Howard had a d i s c u s s i o n concerning
t h e postage meter and when t h e d i s c u s s i o n was concluded, p l a i n t i f f
s t a r t e d t o leave t h e premises.
         P l a i n t i f f walked i n an e a s t e r l y d i r e c t i o n a c r o s s t h e showroom
f l o o r and upon r e a l i z i n g he was n o t going i n t h e proper d i r e c t i o n
t o e x i t through t h e south door, he made a righthand t u r n of
approximately 90 degrees a t which time he f e l l t o t h e f l o o r .                         The
f i r s t statement t h a t p l a i n t i f f made a f t e r f a l l i n g was "Oh, those
damn l e a t h e r heels".      P l a i n t i f f s u f f e r e d personal i n j u r i e s a s
a r e s u l t of h i s f a l l f o r which he seeks t o recover damages from
defendant,
          A t t h e time of h i s f a l l , p l a i n t i f f was wearing shoes which
t h e d i s t r i c t c o u r t found t o be of "an unusual type".                 Specifically
t h e d i s t r i c t c o u r t found p l a i n t i f f ' s shoes t o have:
          "Leather s o l e s with two o r t h r e e nailheads pro-
          t r u d i n g from t h e l e a t h e r s o l e s and l e a t h e r h e e l s
          with two rows of n a i l s completely going around
          t h e o u t s i d e edge of t h e h e e l , and with a wedge-
          shapdd piece of s t e e l t h a t a l s o protruded above
          t h e l e a t h e r s o t h a t both t h e n a i l s and t h e wedge-
          shaped piece of s t e e l would come i n c o n t a c t with
          any s u r f a c e on which t h e shoe was placed."
          The showroom f l o o r was constructed i n 1960 o r 1961.                         I t was
composed of an a s b e s t o s o r a s p h a l t t i l e which t h e d i s t r i c t c o u r t
found t o be "of common ordinary use i n homes, and businesses i n
Montana."        Allen Sorenson, a f u l l time employee of defendant, was
r e s p o n s i b l e f o r i t s c a r e and maintenance.        The l a s t t i m e i t had
been cleaned and waxed p r i o r t o p l a i n t i f f ' s f a l l was on June 1,
1968,some 18 days p r i o r t o p l a i n t i f f ' s f a l l .        A t t h a t time t h e
f l o o r was f i r s t cleaned by mopping i t w i t h a mixture of h o t water,
ammonia, "Spic and span", and "Wax-Off".                         The f l o o r was then twice
remopped with hot water only and allowed t o dry f o r about an hour.
Then a l i q u i d wax was poured on t h e f l o o r and t h e f l o o r was waxed
with a hand waxer.             I t was then allowed t o dry f o r two o r t h r e e
hours and then buffed with a b u f f e r .
           O t h e morning of p l a i n t i f f ' s f a l l about an hour p r i o r t o
            n

t h e a c c i d e n t , Sorenson had d u s t mopped t h e showroom f l o o r .              At
t h a t time he d i d n o t s e e any f o r e i g n o r unusual substances on t h e
floor.      Jack Howard, t h e owner, and Mrs. Avis Hoerning, t h e book-
keeper, both t e s t i f i e d they had n o t observed any unusual substances
on t h e f l o o r t h e morning of t h e a c c i d e n t and t h a t t h e f l o o r was
not slippery.          Following t h e a c c i d e n t , both t e s t i f i e d , they
observed t h e place where p l a i n t i f f f e l l and d i d n o t f i n d any
unusual substances on t h e f l o o r nor was t h e f l o o r , i n t h e i r opinion,
more s l i p p e r y a t t h e p l a c e where p l a i n t i f f f e l l .   They a l s o
t e s t i f i e d t h a t t o t h e i r knowledge no one had s l i p p e d o r f a l l e n on
t h e f l o o r previously.
          Plaintiff testified, at least indirectly, that the showroom
floor was slippery at the time and place of his fall.    Additionally,
plaintiff called as an expert witness a consulting engineer who
testified concerning a series of tests he had conducted prior to
the trial on various types of tile floor surfaces with reference
to their slipperiness and who also conducted tests in the courtroom
during the trial on the tile on defendant's showroom floor under
substantially similar conditions as those existing at the time
of the accident.
       The thrust of his testimony was that defendant's showroom
floor was in a slippery condition at the time of plaintiff's fall.
This opinion was based on tests that he had conducted indicating
that the coefficient of friction (the ratio of force required to
move a weight on a floor surface) exceeded what he described as
the national standard of safety with reference to coefficients of
friction on floor surfaces in the United States. This so-called
national standard was based on a 1948 research report entitled
"lfeasurement of Slipperiness of Walkway Surfaces" by the National
Bureau of Standards in conjunction with the National Bureau of
Safety.    In a nutshell, this research report fixed a coefficient
of friction of .4 as the breaking point between a slippery surface
and a nonslippery surface. If a given floor surface has a co-
efficient of friction lower than .4 it is slippery, while a co-
efficient of friction higher than . indicates a nonslippery floor
                                   4
surface.    The tests conducted by the witness in the courtroom
indicated a coefficient of friction of .235 for defendant's showroom
floor surface at the time of plaintiff's fall.
       Following trial, the district court entered findings of
fact, conclusions of law, and judgment for defendant accompanied
by an opinion giving the basis of the decision.    In substance, the
district judge found that the plaintiff had not come forth with
any substantial evidence showing the breach of any legal duty by
defendant and found that defendant had used ordinary and reason-
able care in the maintenance of its showroom floor; hence no
negligence and no liability on the part of defendant.
         The controlling issue on appeal is the sufficiency of the
evidence to support the district court's findings, conclusions and
judgment   .
          Plaintiff contends that the district court erred in finding
that the floor was not slippery; that plaintiff's shoes were
unusual; and that defendant breached no legal duty.
         At the outset we observe that there is no direct finding
by the district court that the floor was not slippery. However,
we believe this is necessarily implied in the findings the district
court did make and we will so treat it, Admittedly the evidence
is conflicting in reference to the slipperiness of the showroom
floor.     It is the function of the trier of the facts, in this
case the district judge, to resolve those conflicts by determining
the credibility of the witnesses and the weight to be given their
testimony.      Our function on appeal is simply to determine whether
there is substantial credible evidence supporting the findings.
State Highway Commission v. West Great Falls Flood Control and
Drainage District, 155 Mont. 157, 468 P.2d 753, and cases cited
therein.       If there is, the findings will not be disturbed on
appeal.     Spencer v. Roberston, 151 Mont. 507, 445 P.2d 48, and
cases cited therein.
         We find substantial credible evidence supporting the
district court's implied finding that defendant's showroom floor
was not in a slippery condition at the time of plaintiff's fall.
The uncontradicted evidence of witness Edward Nurse indicates
that asbestos or asphalt tile is a common type floor covering
found in many homes, buildings and business places in Montana.
The evidence indicates that the care and maintenance of the show-
room floor was the duty and responsibility of Allen Sorenson,
an employee well qualified by training and experience in the care
of defendant's floor since 1965.      The evidence shows in detail
what was done to the floor prior to plaintiff's fall.      The testi-
mony and evidence of witness Edward Nurse indicates the wax used
on defendant's floor had no effect on the slipperiness of its
s u r f a c e on t h e b a s i s of t e s t s he conducted.            The uncontradicted
testimony of witnesses Jack Howard and Avis Hoerning i n d i c a t e d
t h a t they had observed t h e showroom f l o o r a t t h e place of
p l a i n t i f f ' s f a l l both before and a f t e r t h e accident and had
observed no unusual substances on t h e f l o o r nor i n t h e i r opinion
was t h e f l o o r s l i p p e r y .   These same witnesses t e s t i f i e d t h a t t o
t h e i r knowledge no one had slipped o r f a l l e n on t h e f l o o r a t any
time p r i o r t o p l a i n t i f f ' s f a l l .
           Directing our a t t e n t i o n t o t h e d i s t r i c t c o u r t ' s f i n d i n g
t h a t p l a i n t i f f ' s shoes were of an "unusual type" and s p e c i f y i n g
t h e p a r t i c u l a r s of how they were unusual, we likewise f i n d sub-
s t a n t i a l c r e d i b l e evidence supporting t h i s finding.                However,
w e need n o t examine t h e supporting evidence on t h i s p o i n t i n
d e t a i l a s t h e d i s t r i c t c o u r t ' s d e c i s i o n was n o t based on any
c o n t r i b u t o r y negligence of t h e p l a i n t i f f , but on t h e absence
of negligence by defendant.                    Where, a s h e r e , t h e d i s t r i c t c o u r t
f i n d s no negligence on t h e p a r t of defendant, t h e f i n d i n g i s
simply surplusage i n any event a s t h e questions of c o n t r i b u t o r y
negligence o r proximate cause need never be reached.
           P l a i n t i f f ' s f i n a l contention i s t h a t t h e d i s t r i c t c o u r t
e r r e d i n i t s conclusion t h a t defendant breached no l e g a l duty.
Having h e r e t o f o r e found t h a t t h e r e i s s u b s t a n t i a l c r e d i b l e e v i -
dence supporting t h e d i s t r i c t c o u r t ' s implied f i n d i n g t h a t t h e
showroom f l o o r was n o t s l i p p e r y a t t h e time of p l a i n t i f f ' s f a l l
and having d e t a i l e d t h e evidence i n support of t h i s f i n d i n g ,
t h e conclusion of t h e d i s t r i c t c o u r t t h a t defendant breached no
l e g a l duty i s inescapable.
           Whatever may be s a i d of t h e expert opinion evidence of
p l a i n t i f f ' s c o n s u l t i n g engineer, t h a t t h e showroom f l o o r was i n
a s l i p p e r y condition a t t h e time of p l a i n t i f f ' s f a l l based on
tests he conducted r e l a t i n g t o t h e c o e f f i c i e n t of f r i c t i o n , i t
simply c r e a t e d a c o n f l i c t i n t h e evidence which was resolved
a g a i n s t t h e p l a i n t i f f by t h e d i s t r i c t judge a s trier of t h e f a c t s .
           Expert opinion evidence i s n o t conclusive of t h e i s s u e ;
t h e c r e d i b i l i t y of t h e e x p e r t witness and t h e probative value of
h i s testimony a r e f o r t h e t r i e r of t h e f a c t s .         Putman v. P o l l e i ,
153 Mont. 406, 411, 457 P.2d 776.                           The following stock j u r y
i n s t r u c t i o n i s commonly given i n Montana and s e t s t h e c o r r e c t
standard t o be a p p l i e d by a j u r y i n weighing expert opinion e v i -
dence and t h e same c r i t e r i a apply i n c a s e s where t h e d i s t r i c t
judge r a t h e r than a j u r y i s t r i e r of t h e f a c t s :
          h he r u l e s of evidence o r d i n a r i l y do n o t permit
           t h e opinion of a w i t n e s s t o be received a s e v i -
           dence. A exception t o t h i s r u l e e x i s t s i n t h e
                        n
           c a s e of expert witnesses. A person who by educa-
           t i o n , study and experience has become an e x p e r t
           i n any a r t , science o r profession, and who i s c a l l e d
           a s a w i t n e s s , may g i v e h i s opinion a s t o any matter
           i n which he i s versed and which i s m a t e r i a l t o t h e
           case. You should consider such e x p e r t opinion and
           should weigh t h e reasons, i f any, given f o r i t .
           You a r e n o t bound, however, by such an opinion.
           Give i t t h e weight t o which you deem i t e n t i t l e d ,
           whether t h a t be g r e a t o r s l i g h t , and you may r e j e c t
           i t , i f i n your judgment the reasons given f o r i t
           a r e unsound. "
           The testimony of p l a i n t i f f ' s c o n s u l t i n g engineer c l e a r l y
i n d i c a t e d t h a t t h e wax applied t o t h e showroom f l o o r had no e f f e c t
on t h e s l i p p e r i n e s s of i t s s u r f a c e :
           "Q. Y e s , s o I t h i n k i t ' s f a i r t o say, and you
           have s t a t e d before t h a t t h e s e t i l e s from Howard
           Motors, your c o e f f i c i e n t of f r i c t i o n was n o t any
           d i f f e r e n t p a r t i c u l a r l y whether t h e t i l e s w e r e waxed
           o r whether they were unwaxed, i s t h a t a f a i r s t a t e -
           ment? A . Correct.
           Q .     OK.     A.       With t h e shoe we used.
           "Q.       Yes, s o I t a k e i t , M r . Nurse, t h a t based on
           t h a t , t h a t we can probably r u l e out t h e Duratex
           wax with regard t o whether i t made t h e s u r f a c e
           s l i p p e r y o r less s l i p p e r y , t h a t would be a f a i r
           statement? A.           I n t h e case of Howard Motors.
           "Q.     Yes.      A..        Yes.
           "Q.       And of course, t h a t ' s what we a r e t a l k i n g
           about h e r e , so t h e wax wouldn't r e a l l y make any
           d i f f e r e n c e , i s t h a t r i g h t ? A. W d i d n ' t f e e l
                                                             e
           i t was d e t e c t i b l e .
           "0.     Right.          A.     I didn't."

           This testimony, coupled with uncontradicted testimony t h a t
t h e r e was no foreign substance on t h e f l o o r , and t h a t t h e f l o o r
    had been d u s t mopped about an hour p r i o r t o t h e a c c i d e n t amply
    supportls t h e conclusion defendant used ordinary and reasonable
    c a r e i n maintaining i t s showroom f l o o r and breached no l e g a l
    duty owing t o p l a i n t i f f .
              The judgment of t h e d i s t r i c t c o u r t i s affirmed.



                                                 Justice




/       Associate ~ u s t i c e s ,
