Ott v. Boring

• Decision Date: 11 May 1909
• Citation: 121 N.W. 126,139 Wis. 403
• Parties: OTT v. BORING.
• Court: Wisconsin Supreme Court

139 Wis. 403

121 N.W. 126

OTT

v.BORING.

Supreme Court of Wisconsin.

May 11, 1909.

Appeal from Circuit Court, Ashland County; E. Ray Stevens, Judge.

Action by Eli Ott against C. O. Boring, as executor of Franklin J. Pool, deceased. From the judgment, both parties appeal. Modified and affirmed.

Accounting to determine the value of one-fourth the merchandise, book accounts and going business of a mercantile establishment owned by the plaintiff and Franklin J. Pool at the time of the latter's death, December 16, 1904, pursuant to the judgment of this court on a former appeal. Case reported in 131 Wis. 472, 110 N. W. 824, 111 N. W. 833. The trial was before a referee who fixed the value of the stock at $71,639.69, that of the book accounts at $7,749.08, and that of the good will at $10,000, aggregating, with the value of some other property and with interest, $106,635.98, which was found to be subject to such deductions as to leave the net amount for division $74,032.03.

Upon due motions and exceptions the court changed the conclusions of the referee by increasing the value of the merchandise by $39,987.86, making the total thereof $111,627.55, and the value of the book accounts $1,013.67, making the same $8,762.75, instead of $7,749.08, and modified the conclusion of law accordingly.

Due exceptions were taken and motions and rulings made, preserving for review questions treated in the opinion. Both sides appeal.Sanborn, Lamoreux & Pray (Burr W. Jones and Horace B. Walmsley, of counsel), for plaintiff.

R. Sleight, for defendant.

MARSHALL, J. (after stating the facts as above).

An examination of the record leads to the conclusion that there is an abundance of evidence to support the findings of the referee on each of the three questions of fact passed upon by him, viz; one as to the value of the stock of merchandise, one as to the value of the book accounts and one as to the value of the good will of the business, in the aggregate, the value of the partnership property possessed by Mr. Pool and Mr. Ott at the time of the former's death. Such being the case it seems that the trial court, in making the radical changes of such findings, must have proceeded with erroneous notions of the law governing the matter.

We must assume, it was well understood, as the fact is, that findings of a referee have the same dignity, as regards being disturbed by the trial court on review, as the findings of that court have when challenged here as being erroneous; they are not to be disturbed unless against the clear preponderance of the evidence. Hinz v. Van Dusen, 95 Wis. 503, 507, 70 N. W. 657;Johnson v. Goult, 106 Wis. 247-250, 82 N. W. 139. Cases have gone so far as to hold that findings of a referee, appointed to hear, try and determine, have the force of a verdict of a jury and are not to be disturbed if there is any credible evidence to support them; that having been supposed at one time to be required by section 2865, St. 1898, providing that “when the reference is to report the facts the report shall have the effect of a special verdict.” Dunbar v. Bittle, 7 Wis. 143;Briggs v. Hiles, 79 Wis. 571, 48 N. W. 800. But that rule, early declared and subsequently, as late as Briggs v. Hiles, reiterated, has been modified so as to put a referee's findings in the same class with those of a trial court. Johnson v. Goult, supra; Guetzkow Bros. Co. v. A. H. Andrews Co., 92 Wis. 214, 224, 66 N. W. 119, 52 L. R. A. 209, 53 Am. St. Rep. 909;Leasia v. Penokee Lumber Co., 103 Wis. 304, 79 N. W. 224;Bierbrauer v. Kuhnel, 122 Wis. 306, 99 N. W. 1018. In Wittmann v. Berger, 125 Wis. 626, 627, 104 N. W. 815, the court remarked: “There certainly is testimony supporting the finding, and we find ourselves unable to say that it is against the clear preponderance of the evidence.”

The force of the rule referred to may well be appreciated by reference to the uniform administration of it as to findings of trial courts. All reasonable doubts are to be resolved in favor of such findings and unless wrong rules of law were evidently applied to the evidence, if there appears to be substantial credible evidence in favor of the findings, it requires a pretty strong case to warrant weighing here the conflicting evidence and determining contrary to the decision below by striking a balance between the major and minor probabilities--the real right of the matter.

It is recognized that there are many things which cannot be spread upon the printed record, but may properly be considered by a trial court and are of great, and often controlling, significance in determining the truth as between conflicts from the mouths of witnesses. As experience shows, and from the very nature of things, justice is much more likely to be done by leaning pretty strongly upon the initial determination than by endeavoring to treat a disputed matter from an original standpoint. Hence the rule that there must not only be a proponderance of evidence against such determination, but there must be a clear preponderance. The significance of the word “clear” is not always fully appreciated. Manifestly, that requires the preponderance to be so apparent as to manifestly outweigh any probable legitimate influence upon the triers of those advantages for discovering the truth which the reviewing tribunal cannot have. That is indicated by many expressions found in our decisions. For examples, we refer to the following:

“While this evidence might adequately have warranted the contrary, we cannot say that the conclusion reached by the trial court is without evidence in its support, or that such evidence is so overwhelmingly rebutted and overcome as to justify this court, on appeal, in setting that conclusion aside.” Menasha Wooden Ware Company v. Michelstetter, 126 Wis. 427, 429, 105 N. W. 927, 928.

Whether the findings are supported by the evidence presents “a question of the character often met with as to whether the trial court properly weighed the evidence. That is one of the most difficult questions which a superior jurisdiction has to deal with as regards overruling a decision of the trial court, where it has the opportunity to meet the witnesses face to face and has other advantages over the court which only has the benefit of a printed history of the trial. We have enlarged upon this subject too many times and too fully to leave anything more which can be helpfully said. A clear preponderance of evidence against a trial court's finding; when such evidence must outweigh that which is in favor of such finding and all the advantages of the trial court which we have referred to, must necessarily be a preponderance so decided as to leave but little room for reasonable doubt on the question.” Rankl v. Schmidt, 133 Wis. 103, 106, 113 N. W. 423, 424.

“Such preponderance is not effective to call for” disturbing the findings ...