Cleveland v. Glover , 13 Wash. 131 ( 1895 )

Gordon, J.

(dissenting).- I agree with the majority that the question presented by the record is a simple question of fact. I also accept the statement in the opinion of the majority that “ the question of fact must largely depend upon the credit to be given respectively to the testimony of the husband of the plaintiff and that of the appellant.” Such being the character of the question and the rule upon which its determination must depend, I am unwilling to disturb the finding of the lower court in this case. That court had many circumstances of advantage to enable it to determine what witnesses were entitled to credit, and to give credit accordingly. The appearance of a witness while testifying, his demeanor, candor and intelligence, the tone of .his voice, the look or gesture, are all circumstances which assist the experienced trial judge in reaching a conclusion, and in themselves constitute evidence of the most convincing character, and yet it is not possible to incorporate it in the record upon appeal.

For this and kindred reasons, the rule has long been settled elsewhere that an appellate tribunal will not disturb the findings of a lower court where there is a substantial conflict in the evidence and where it does not clearly appear that injustice has been done. Nor do I think that the statute of this state governing appeals of this character requires the adoption of a different rule. Like any other statute it should receive a reasonable construction and be interpreted in the light of the general rule prevailing elsewhere. I cannot believe that the legislature intended to put,the burden upon this court of determining from the record alone which of two witnesses, whose testimony is in direct conflict, told the truth. That is the province of the lower court, which sees the witnesses.

With deference to my brethren, I am constrained to dissent from their conclusion, and think that the decree appealed from should be affirmed.