Stanley v. Stanley , 97 Utah 520 ( 1939 )

I concur in the results. It would perhaps be well if we fastened upon an accurate and consistent expression of the judicial policy of this court in the review of equity cases. The Constitution of Utah, Art. VIII, Sec. 9, not only gives us authority but makes it our duty to review the facts. This has been construed to mean that we review and weigh the evidence as it appears in the record. Lund v. Howell, 92 Utah 232,67 P.2d 215 (followed in Id., 92 Utah 250, 67 P.2d 223);Christenson v. Nielsen, 88 Utah 336, 54 P.2d 430, 432 (where this court held that in an equity case the appellate court was "compelled to review the record and pass on the weight and sufficiency of the evidence"); Buzianis v. Buzianis, 81 Utah 1,16 P.2d 413 (where the court held that where there was a conflict in the evidence it was the court's duty "to pass upon the relative weight thereof").

The cases are replete with expressions as to the tests to be applied to determine when we will reverse or affirm in an equity case. They vary considerably. Hereunder are cited cases from this jurisdiction with various expressions used. Skola v. Merrill,91 Utah 253, 64 P.2d 185 (where this court reversed the trial court because the "fair preponderance" of the evidence was the other way); Chapman v. Troy Laundry Co., 87 Utah 15,47 P.2d 1054, 1056 (where it was held that the Supreme Court has the burden of determining "whether the findings of fact are supported by a fair preponderance of the evidence"); Transfer Realty Co. v. Lichfield, 84 Utah 163, 33 P.2d 179, 181, rehearing denied,85 Utah 451, 39 P.2d 752 (where it was held that this court "may examine the evidence to determine whether or not the trial court's findings are supported by a preponderance of the evidence"); Lake Shore Duck Club v. Lake View Duck Club,50 Utah 76, 166 P. 309, 310, L.R.A. 1918B, 620 (where it was held that the Supreme Court has the power "to review the testimony for the purpose of determining what the facts are * * * even though its views are in conflict with the findings of the trial court");Forbes v. Butler, 66 Utah 373, 242 P. 950, 951 (holding it incumbent on the court "to review the evidence and decide the case according to the facts as we find them to be, bearing in mind legal presumptions in favor of the judgment"); and GarfieldBanking Co. v. Argyle, 64 Utah 572, 232 P. 541, 542 (holding that the Supreme Court in weighing evidence should take into consideration the fact that the "trial court was not bound to give the same weight or effect to all the statements made by the several witnesses").

In Zuniga v. Evans, 87 Utah 198, 48 P.2d 513, 520, 101 A.L.R. 532, a well considered case, it was stated:

"After a careful reading of the entire testimony of this witness, and weighing the same along with the admitted facts in the case, we do not feel satisfied that the finding ought to be disturbed. The trial judge did not accept the testimony of this witness in full. The trial judge had a better opportunity from seeing and hearing the witness than we have from merely reading the transcript to appraise his credibility and to determine what weight should be given to his testimony. The opinion of the trial judge is therefore entitled to some weight with us."

Other cases containing similar expressions are as follows:Williams v. Peterson, 86 Utah 526, 46 P.2d 674; Silver KingConsol. Mining Co. v. Sutton, 85 Utah 297, 39 P.2d 682;Corey v. Roberts, 82 Utah 445, 25 P.2d 940; ConsolidatedWagon Machine Co. v. Kay, 81 Utah 595, 21 P.2d 836; Holman v. Christensen, 73 Utah 389, 274 P. 457; Warner v. TyngWarehouse Co., 71 Utah 303, 265 P. 748; Ephraim Willow CreekIrr. Co. v. Olson, 70 Utah 95, 258 P. 216; Schulder v.Dickson, 66 Utah 418, 243 P. 377; Jenkins v. Nicolas,63 Utah 329, 226 P. 177; McKellar Real Estate Investment Co. v.Paxton, 62 Utah 97, 218 P. 128; Lawley v. Hickenlooper,61 Utah 298, 212 P. 526; Bracken v. Chadburn, 55 Utah 430,185 P. 1021; Kinsman v. Utah Gas Coke Co., 53 Utah 10,177 P. 418; Campbell v. Gowans, 35 Utah 268, 100 P. 397, 23 L.R.A., N.S., 414, 19 Ann. Cas. 660 (followed in Utah Com. SavingsBank v. Fox, 44 Utah 323, 140 P. 660; and Little v.Stringfellow, 46 Utah 576, 151 P. 347): Fares v. Urban,46 Utah 609, 151 P. 57; Froyd v. Barnhurst, 83 Utah 271,28 P.2d 135; Paxton v. Paxton, 80 Utah 540, 15 P.2d 1051; Thomas v.Butler, 77 Utah 402, 296 P. 597; Clark v. Clark, 74 Utah 290,279 P. 502; Olivero v. Eleganti, 61 Utah 475, 214 P. 313 (and cases cited); Singleton v. Kelly, 61 Utah 277, 212 P. 63 (and cases cited); Rieske v. Hoover, 53 Utah 87, 177 P. 228.

The expressions range all the way from that which says a review in equity in this court is a trial de novo on the record, to that taken from Olivero v. Eleganti, supra, contained in the main opinion.

I opine that what was really meant was that on review we would go over the record to determine what our conclusions of fact were from the transcript of the evidence, and if at the end of that investigation we were in doubt or even if there might be a slight preponderance in our minds against the trial court's conclusions, we would affirm. This is because we would be confined to the dry written record and would not have the benefit of seeing and hearing the witnesses. In some cases that would be quite valuable while in others, where the evidence was purely or almost altogether documentary, it might be practically valueless. Such a distinction was noted in the concurring opinion in Greco v. Grako, 85 Utah 241,39 P.2d 318, 322, where it was said:

"I am not unmindful of the rule to the effect that, while a written record in an equity case may apparently show the preponderance of evidence in favor of a conclusion different from that reached by the trial judge, still the benefit of the doubt should be given to his conclusions where the imponderables, not revealed by the record, such as the manner and demeanor of the witnesses (very important indexes to credibility), might weigh in the scale sufficiently to reverse that apparent preponderance of the record. Where, however, the preponderance shown by the record is so great in favor of a conclusion different from that arrived at by the trial judge that the unrecorded parts of the trial could not reasonably be expected to change such apparent preponderance, or where, as in this case, some fact independent of any element which might affect the credibility of witnesses speaks eloquently of a wrong conclusion by the trial judge, the rule does not apply."

The reason then that we have the expressions that in order to reverse there must be shown a "clear preponderance" or "fair preponderance" of the evidence the other way or that we must "bear in mind legal presumptions in favor of the judgment" etc., is because of this recognition that the lower court had the witnesses before it and was better able to judge of their credibility. This is borne out by the following expressions:

In Corey v. Roberts, 82 Utah 445, 25 P.2d 940, 942, the court held:

"In equity cases the appeal (Const. Utah, art. 8, § 9) may be on questions of both law and fact. Such is the appeal in this case. On such review the duty of this court requires an examination of all questions of law and all facts revealed by the record, and, after making such examination and due allowance for the better opportunity afforded the trial court to observe the demeanor of witnesses, and more advantageous position of determining their credibility and the weight to be given to the testimony submitted, this court, analogous to a trial de novo on the record, will determine from a fair preponderance or greater weight of the evidence whether or not the findings of the trial court are supported thereby. Lawley v. Hickenlooper, 61 Utah 298, 212 P. 526."

In Kinsman v. Utah Gas Coke Co., supra, the court stated [53 Utah 10, 177 P. 420]:

"While this court will, and it is its duty in equitable proceedings to, review the testimony and determine its weight, of necessity much consideration must and will be given to the trial court's findings, not only because such court heard the witnesses and had an opportunity to observe their demeanor upon the witness stand, their means of knowledge, their interests, etc., but particularly in this case greater consideration should be given to the court's finding by reason of the court's opportunity in visiting the plant and vicinity, and seeing from personal investigation and observation the conditions that exist there."

I think hardly accurate the expression in Chapman v. TroyLaundry Co., supra, that the Supreme Court has the burden of determining "whether the findings of fact are supported by a fair preponderance of the evidence." Our duty is to make an independent examination of the record. If after that we find (1) the preponderance of the evidence supports the trial court's findings of fact, or (2) if there is doubt in our minds as to where the preponderance lies, or (3) we think the evidence as revealed by the record may slightly preponderate against its conclusions but such preponderance may well be offset in favor of his conclusions by having seen the witnesses and been able to judge by their demeanor as to their credibility, then we will not reverse. The expressions that there must be a "clear" or "fair" preponderance of the evidence against the findings of the trial judge, seek to allow for his advantaged position in having seen the behavior of the witnesses on the stand.

In short, as held in Wilcox v. Cloward, 88 Utah 503,56 P.2d 1, if after we review the record we cannot say that the court came to a wrong conclusion, we should affirm. We do not reverse if we find the court's findings supported by a fair preponderance of the evidence, or if supported only by a slight preponderance, or if the evidence is evenly balanced, or even if there is in the record a slight preponderance the other way, for the reasons above set out.

Being convinced that evidence of delivery of the deed from Willis O. Stanley to Emily C. Stanley should not be received because Emily C. Stanley was incompetent under Sec. 104-49-2, R.S.U. 1933, I shall treat the case as if there was no evidence of delivery. This makes it unnecessary for me to determine whether declarations of a decedent tending to show ownership in him after a manual handing of a deed from himself to another when the deed ran to that other are admissible in evidence to find the intent with which the deed was so handed, especially where not made contemporaneously with the manual act. I am not prepared, without further research, to subscribe to the doctrine of Mower v. Mower, 64 Utah 260, 228 P. 911, although it may be the law of this state.

It may be contended that even though there is no direct evidence of manual handing over from Willis to Emily Stanley, the inference from her testimony that she saw the deed in his hand and next saw it in her hand raises the inference of delivery. While I have grave doubts whether the rule of Sec. 104-49-2, R.S.U. 1933, may be circumvented by admitting every fact surrounding the fact which is to be concluded from them, when such facts themselves were "equally within the knowledge," no cross assignment of error was made as to their admission hence they must stand as correctly admitted for this review. But I do not think the inference that a manual handing over took place need be indulged. Certainly when the facts from which we are asked to infer were wrongly admitted and we are asked to draw an inference which will reverse the trial court in its findings, we will do so only when it is the necessary and only inference. I do not see that it is such in this case. For that reason I found my concurrence on the assumption that it does not appear in this case that there was any delivery of the deed.

PRATT, J., being disqualified, did not participate herein.