Faulkner v. Simms

• Decision Date: 18 March 1903
• Citation: 94 N.W. 113,68 Neb. 299
• Parties: FRANCIS C. FAULKNER ET AL., APPELLANTS, v. BENJAMIN M. SIMMS ET AL., APPELLEES
• Court: Nebraska Supreme Court

94 N.W. 113

68 Neb. 299

FRANCIS C. FAULKNER ET AL., APPELLANTS, v. BENJAMIN M. SIMMS ET AL., APPELLEES

Supreme Court of Nebraska

March 18, 1903

FORMER JUDGMENT MODIFIED.

POUND C. BARNES and OLDHAM, CC., concur.

OPINION

POUND, C.

At a former hearing, the decree of the district court was affirmed as to one of the defendants, but as to another was held contrary to the evidence and was reversed. The latter obtained a rehearing upon the ground that there was evidence to support the finding as to him, and now urges that the finding must be sustained for that reason.

The reported decisions of this court leave the question as to the power and duty of the court on appeal from findings of fact in some seeming confusion. Often, in the same volume of reports, statements on this subject are to be found in very different terms, if not in absolute contradiction. In general, there are two views, each supported by a long line of decisions running far back in the reports, and in particular cases extreme statements have been made obiter which, if adhered to, would amount in effect to an entire abdication by this court of one of its important functions. On the other hand, extreme statements are also to be found which would extend its power of reviewing findings of fact to an unreasonable extent, and, as a consequence of this confusion, some support may be found for taking any course with respect to findings of fact challenged on appeal, which the court may choose. Consistently with prior decisions or dicta, it may refuse to do more than to ascertain whether there is some evidence in support of the finding, or it may go no further than to see whether the evidence is conflicting, or "fairly conflicting," or it may stop when it finds that the conclusion below is reconcilable with some reasonable construction of the testimony, or, notwithstanding the evidence is conflicting, it may set the finding aside on the ground that it is "clearly wrong," or, according to some of the cases, it may reverse a decree because, in its opinion, against the weight of the evidence. Such a condition should not be tolerated, and we think it time that this subject be re-examined, and a definite, settled rule announced.

Considering the matter upon principle, we think it clear that in passing on findings of fact upon appeal, the reviewing court should go over all the evidence and reach its own conclusion thereon, giving such weight to the determination of the trial court as to credibility of witnesses and its finding on conflicting evidence as, under all the circumstances of the case, the nature of the evidence before the trial court, and that court's special opportunities, if any, for reaching a correct solution, such finding may be entitled to. It goes without saying that, in general, the trial judge has a great advantage in that he sees and hears the witnesses. Moreover he commonly knows more or less of their general character and standing, and may have a general local knowledge as to matters referred to in evidence and surrounding circumstances which enables him to weigh conflicting evidence with much greater assurance of reaching a correct solution than is possible in the reviewing court. Hence, in ordinary cases where the evidence is entirely oral and the trial court may be presumed to have had a general local knowledge of the parties, the witnesses and the subjects of controversy, the finding of the trial court is often entitled to almost decisive weight. It is a matter of common knowledge that a written record can not reflect the oral testimony at the trial with absolute accuracy. For these reasons, it is eminently proper that findings on conflicting evidence in such cases be adhered to unless clearly wrong. It must not be forgotten, however, that there are sometimes advantages on the side of the reviewing court. In long and complicated equity cases, especially where an accounting is involved, there is a marked difference between reaching a finding on one's recollection of what he has heard in the course of a trial lasting weeks or even months, and a finding on one's recollection of what he has heard in the course of a trial lasting weeks or even months, and a finding as a result of patient investigation of a written record, with the aid of printed briefs, where comparisons may be made, computations tested, circumstances weighed, and conflicting statements sifted, upon the certain and assured foundation of a written page. Moreover, the court is instituted to review causes, and the right to resort to it for that purpose is guaranteed by the constitution. It has no right to renounce its functions. If, giving due weight to every advantage possessed by the trial court in the particular case, it is satisfied that a finding is clearly wrong, it should set such finding aside, notwithstanding there may be some competent evidence in support thereof. Otherwise it has not fulfilled its duty of reviewing the finding when properly challenged.

We think these propositions are supported by the preponderance of authority, and that so far as prior decisions or dicta conflict therewith they should be limited or overruled. From an early period until the latest reported decisions, and in nearly every volume of the reports, this court has said repeatedly that findings on conflicting evidence will not be disturbed "unless clearly wrong." The same idea has been expressed somewhat differently in many other cases; as, for instance, that a finding upon "evidence conflicting and apparently evenly balanced" will not be disturbed, or that the finding will not be set aside "where the evidence is such as to justify impartial minds in reaching different conclusions," or "solely because the court may think that if it had tried the case it would have reached another result," or where the evidence is "conflicting without a decided preponderance in favor of appellant," or "where the evidence is conflicting, and reasonable minds might fairly differ," or where the evidence is "equivocal, or fairly conflicting," or though rendered "on conflicting evidence, if there is sufficient favorable evidence to sustain it." In other cases to be referred to this line of authority, the language used is not so clear, but the obvious intention is to announce the same rule. Thus, it has been said at times that a finding on conflicting evidence will be adhered to if "supported by sufficient evidence," or "unless unsupported by sufficient competent evidence," or if based upon "substantially conflicting testimony." The phrases last cited approach very closely to a different view, sometimes countenanced by loose expressions, which will be considered presently. But the context in each case makes it sufficiently clear that the court meant such a substantial conflict as to create a doubt to be settled only by passing on the credibility of witnesses, and that by "sufficient" evidence it meant sufficient in the mind of the reviewing court. This appears more clearly by reference to numerous cases in which the court has stated the same rule more strongly in the...