Fox v. Hale & Norcross Silver Mining Co. , 108 Cal. 369 ( 1895 )

Garoutte, J., concurring.

I concur in that portion of the judgment which is affirmed; but dissent from the opinion of the court wherein it is held that the evidence-is insufficient to support the finding of fact to the effect that 74.6 per cent of the car sample assay is a fair return to the Hale & Norcross Company. The actual return to this mining company by the milling company was but 52 per cent of the car sample assay. This was not. enough. No argument or citation of facts is necessary to prove it. Everybody knows it. But the all-important question is, how much bullion in excess of this 52 per cent should have been returned to the mining company under the evidence found in this record? There is the rub. Mr. Lyman, superintendent of the Consolidated Virginia mine, and one of the principal witnesses for the defense, stated that he would hope to get a return of 65 per cent of the car sample assay. And, if I had been the trial judge, upon this and other evidence introduced, I should have recognized the justice of a return to the mining company to that amount at least. But the true rule to be invoked by a justice of this court, in determining the sufficiency of the evidence to support a finding of fact made by a trial court, is not what such justice would have done upon the evidence, if sitting as a trial judge, but does the evidence create a substantial conflict? And the question of the presence of a substantial conflict is in no way dependent upon the great number of witnesses upon the one side, and the limited number upon the other; for it is often the case that one shall prevail against the many. For the fore- ■ going reasons, and many others unnecessary to detail, in a case like this, the finding of a fact by a trial court should not be set aside without the soundest and most convincing reasons. The opposite conclusion should be so plain that a mere statement of the evidence would indicate it. ¡ It should not be necessary to resort to an elaborate and complex analysis of the evidence in detail to prove it.

The witness, Holden, testifies that the mining company should have had a return of 85 per cent upon the basis of the pulp sample assay. If we allow a variation of 10 per cent between the car sample assay and the pulp sample* assay, then under this testimony there should have been a return to the mining company of about 76.5 per cent of the car sample assay. It is attempted to reduce this percentage by a claim of allowance or discount for moisture and evaporation. There appears to have been but little importance attached to this question of moisture during the progress of the trial, and all indications point to it as somewhat of an afterthought. But, however that may be, I think a slight reduction would satisfy its claims; and, in view of this testimony, taken in connection with that of Mr. Mackay and others, I think there is sufficient evidence in the record to support the finding which the majority of the court hold to be without support.

Rehearing denied.