Endress v. Shove

110 Wis. 141 | Wis. | 1901

Mabshall, J.

The sole question raised on this appeal is, Are the findings of fact contrary to the clear preponderance of the evidence ? Generally, in determining such a question, the circumstance that a trial judge has the benefit of the personal appearance of witnesses while giving their testimony, in determining the weight that should be given thereto, is regarded as an important factor. That is largely the reason why a reversal of his conclusion on a question of fact is not deemed proper merely because the evidence preserved in the record seems to preponderate that way. Such preponderance is not effective to call for such a result unless it is sufficiently manifest and convincing to overcome any probable effect, upon the judicial mind, of the appearance of the witnesses or other aids, which only the trial court can have, in discovering the truth. It is said that we should not adhere to that rule in the instance under consideration, because the learned circuit judge, in rendering his opinion, stated that his impressions on the trial were in favor of plaintiff, and that he changed his mind upon taking time to ■study the case. Ye are unable to say from that, that the personal appearance and conduct of the witnesses were not factors in reaching the final conclusion. It is more reasonable to say that the study which the trial judge gave the case enabled him to more accurately weigh what the witnesses said in the light of all the circumstances developed on the trial and the personal appearance of the witnesses, than he did as the trial progressed. So the findings of fact before us must be tested by the usual rule governing cases tried by the court. It is not improbable that the system requiring that fails to reach a just result in some cases. No system of jurisprudence ever devised by human agency has, nor would any that could be so devised, come up to the standard of absolute perfection. All that can be done is to administer justice along the lines which experience teaches are most likely to give a full measure of justice to the litigants. Having done that, the result must stand as the infallible truth, for there is no tribunal that can legally question it. The rule to which we have referred, governing this case, is unbending. It admits of no exception where right rules of law are applied to the evidence, and no complaint of that character is made here.

The evidence in the record has been carefully examined and weighed, giving due significance, it is believed, to each and every circumstance established thereby. If the story told by appellant’s son is correct, great injustice has been done to him. If the story told by respondent Theodore C. Shove, which the court believed in the main, is true, the judgment is right. There are circujnstances that strongly corroborate the testimony of young Endress, and circumstances that strongly discredit it. The same is true as to the testimony of Mr. Shove. The corroborating and discrediting circumstances as to the testimony of each are numerous. The weight of one, as to pointing to where the truth lies, cannot be determined without balancing it with others, and then the preponderating weight is not so significant but that it might be overcome readily by the aids which the trial court had, that have not and cannot come to this court. That states the condition of mind in which we are left as a result of an industrious study of the evidence. It does not permit a disturbance of the judgment appealed from. It is useless to discuss the evidence in detail. It must be well understood by the profession that although in theory there is a new trial here on questions of fact, where the trial below was by the court and a bill of exceptions containing the evidence is preserved to support exceptions to the findings, the principle has become so firmly established, that such findings must be regarded as verities in' the case unless overcome by a clear preponderance of the evidence, that such trial is in fact far different from an original trial. The presumptions indulged in, in favor of such findings, are not easily overcome, so it may happen —we venture to say it does happen in some cases — that a judgment of affirmance is rendered where a reversal would occur if such presumptions were left entirely out of consideration. That cannot be helped. The judicial policy of the court and its interpretation of the statute governing the subject are firmly intrenched in our system. They cannot be varied in this case even if we were to say that the evidence in the record, looking at that alone, impresses us contrary to the conclusions reached by the trial court. There would still be left that insurmountable difficulty to a reversal,— absence of such clear preponderance of evidence against the findings as to convince us to a reasonable certainty that the trial judge decided wrong. It must not be lost sight of in this class of cases that there is a wide range between mere preponderance of evidence and that preponderance necessary to overcome the decision of a trial judge on controverted questions of fact. We cannot find that clear preponderence of evidence in this case.

By the Oourt.— The judgment appealed from is affirmed.