Stromerson v. Averill , 22 Cal. 2d 808 ( 1943 )

TRAYNOR, J.

I dissent.. It was incumbent upon defendant to support his contention that Stromerson was his agent and held the equitable title to the property as constructive trustee, under the rule that the evidence in such cases must be “clear, satisfactory and convincing; explicit, unequivocal and indisputable.” (Wehle v. Price, 202 Cal. 394, 397 [260 P. 878] ; Goodfellow v. Goodfellow, 219 Cal. 548, 554 [27 P.2d 898]; Woods V. Jensen, 130 Cal. 200, 203 [62 P. 473]; Sheehan v. Sullivan, 126 Cal. 189, 193 [58 P. 543]; Plass v. Plass, 122 Cal. 3, 12 [54 P. 372]; Taylor v. Bunnell, 211 Cal. 601 [296 P. 288] ; Olson v. Olson, 4 Cal.2d 434 [49 P.2d 827] ; see Bogert, Trusts and Trustees, vol. 1, p. 231; 23 A.L.R. 1500; 65 C.J. 325.) It is my opinion that the trial court did not observe this rule in weighing the evidence in the present case. It is apparent that there was some cooperative arrangement between Stromerson, Averill, Lincoln, and Davis, and the evidence suggests a partnership. It does not in my opinion warrant the conclusion that it is highly probable that the relationship between Averill and Stromerson in the purchase of the land in question was that of principal and agent. If there was no agency there could be no trust' under the authorities relied upon in the majority opinion.

While it rests primarily with the trial court to determine whether the evidence is clear and convincing, its finding is not necessarily conclusive, for in cases governed by the rule requiring such evidence “the sufficiency of the evidence to support the finding should be considered by the appellate court in the light of that rule.” (Sheehan v. Sullivan, 126 Cal. 189, 193 [58 P. 543]; see, also, Moultrie v. Wright, 154 Cal. 520 [98 P. 257].) In such cases it is the duty of the appellate court in reviewing the evidence to determine, not simply whether the trier of facts could reasonably conclude that it is more probable that the fact to be proved exists than that it does not, as in the ordinary civil ease where only a preponderance of the evidence is required, but to determine whether the trier of facts could reasonably conclude that it is highly probable that the fact exists. When it holds that the trial court’s finding must be governed by the same test with relation to substantial evidence as ordinarily applies in other civil cases, the rule that the evidence must be clear and convincing becomes meaningless. It is a contradiction that while the vitality of the rule is thus destroyed its soundness is not questioned. If, as in my opinion, the rule is sound, this court has erred in its pronouncements (see 25 Cal.Jur. 248; 2 Cal.Jur. 921) declining to accept responsibility for its enforcement.

Appellants’ petition for a rehearing was denied October 30, 1943. Curtis, J., and Schauer, J., dissented on the ground that appellants should recover their costs of appeal. Traynor, J., voted for a rehearing. Carter, J., did not participate therein.