Anderson v. Miller's Fairway Foods

• Decision Date: 30 January 1975
• Docket Number: No. 9023,9023
• Citation: 225 N.W.2d 579
• Parties: Stanley E. ANDERSON, Plaintiff/Appellee, v. MILLER'S FAIRWAY FOODS, a corporation, Defendant/Appellant. Civ.
• Court: North Dakota Supreme Court

Page 579

225 N.W.2d 579

Stanley E. ANDERSON, Plaintiff/Appellee, v. MILLER'S FAIRWAY FOODS, a corporation, Defendant/Appellant.

Civ. No. 9023.

Supreme Court of North Dakota.

Jan. 30, 1975.

Syllabus by the Court

1. In all actions tried upon the facts without a jury, the findings of fact of the trial court will not be set aside unless clearly erroneous. Rule 52(a), N.D.R.Civ.P.

2. A finding of fact is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. The mere fact that the appellate court might have viewed the facts differently if it had been the initial trier of the case, does not entitle the appellate court to reverse the lower court.

3. In the instant case, where the plaintiff tripped and fell over wires scattered throughout alley behind defendant's business establishment, trial court's findings that defendant negligently permitted wires from its store to be strewn throughout alley and that plaintiff was not contributorily negligent were not clearly erroneous and will not be disturbed on appeal.

4. An award of damages will not be disturbed on appeal unless the award is so excessive or so inadequate as to be without support in the evidence.

Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for defendant/appellant.

MacKenzie & Jungroth, Jamestown, for plaintiff/appellee.

PAULSON, Judge.

This is an appeal by Miller's Fairway Foods, a corporation, from a judgment entered February 1, 1974, in Stutsman County District Court in which Miller's was found liable for injuries to Stanley E. Anderson, and in which judgment Anderson was awarded $65,633.45.

Anderson commenced this action by service of a summons and complaint dated March 9, 1973, for injuries he sustained when he tripped and fell over some pieces of wire while walking in an alley behind Miller's grocery store in Jamestown, North Dakota.

At the time of the accident, Anderson was 46 years of age and had a life expectancy of approximately 26 years. He was self-employed as a contractor, doing carpentry and siding work.

Miller's operated a supermarket on the corner of Seventh Street and Tenth Avenue in Jamestown. Miller's made a practice of burning certain of its refuse in an incinerator located immediately behind its store. The ashes were then collected by a sanitation company which had contracted to perform such service. The sanitation company's employees would empty the ashes from the incinerator into barrels, and empty the barrels weekly into their garbage truck. The nature of this operation was such that the barrels would be rolled from their location near Miller's building to the sanitation truck which was parked in the alley.

On March 28, 1970, Anderson and his wife walked from their home to a nearby beer parlor to make a telephone call, as they did not have a telephone in their home. The route they chose to follow took them through the alley behind Miller's business establishment. On the day in question, the alley was covered with compacted ice and snow, in which two ruts had been created by the continual passage of dual-wheeled delivery trucks that serviced the various businesses located on this particular city block. The Andersons chose to walk in the path made by these ruts. A number of wires were strewn throughout the alley, some of which were located in the ruts.

The trip through this alley to the beer parlor was negotiated without incident. Mr. Anderson did not notice any wires at this time. At some point during the return trip, Anderson became aware of the wires. Subsequently his feet became entangled in one of the wires and he fell to the ground.

The fall was the cause of a herniated disc in Mr. Anderson's spine. This condition was to be corrected by surgery, but before the surgery could be performed, Mr. Anderson suffered a cerebral vascular accident, or stroke. The stroke prevented the performance of the surgery.

The case was tried to the Stutsman County District Court without a jury. The district court made findings of fact and conclusions of law that are consistent with the awarding of the judgment to Anderson. Miller's predicates as erroneous a number of the district court's findings and conclusions, alleging that they are based upon insufficient evidence.

We note at the outset that our review of the district court's findings of fact is limited by the application of Rule 52(a) of the North Dakota Rules of Civil Procedure, which provides, in pertinent part:

'(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment . . . Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. . . .'

Pursuant to Rule 52(a), the findings of the trial court in this case will not be set aside unless 'clearly erroneous'. We follow the interpretation of this phrase that has been previously adopted by this court and has since been consistently followed. As stated in Hoster v. Hoster, 216 N.W.2d 698, 701 (N.D.1974):

'In In re Estate of Elmer, 210 N.W.2d 815, 820 (N.D.1973), we interpreted the term 'clearly erroneous' as follows:

"A finding is 'clearly erroneous' only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). The mere fact that the appellate court might have viewed the facts differently, if we had been the initial trier of the case, does not entitle us to reverse the lower court. Nee v. Linwood Securities Co., 174 F.2d 434 (8th Cir.1949); Wright & Miller, Federal Rules of Civil Procedure, Sec. 2585, p. 729 et seq."

We shall now consider Miller's allegations of error, based upon the prescribed scope of review. Miller's alleges that the district court erred in finding: that Miller's was negligent; that Anderson was not contributorily negligent; ¹ that Miller's deposited any wires in the alley; that the wires causing Anderson's fall came from Miller's store; that the employees of the sanitation company were agents of Miller's; and that Miller's was liable for an accident occurring in a...