Damman v. Damman

[124] Tbe following opinion was filed December 6, 1910: BarNes, J. Tbe first question we are called upon to consider is whether tbe judgment should be reversed because of tbe failure of tbe trial court to make specific findings of fact ■covering tbe controverted questions which were litigated. Sec. 2863, Stats. (1898), requires tbe trial judge to state in bis decision tbe facts found by him. That tbe convenience •of this coui’t would be subserved by complying with tbe statute in regard to making specific findings is obvious. That tbe interests of litigants may suffer in consequence of failure to •make such findings should be just as obvious to those familiar with our decisions upon tbe subject. Tbe cases will be found cited in Young v. Miner, 141 Wis. 501, 504, 124 N. W. 660; Farmer v. St. Croix P. Co. 117 Wis. 76, 93 N. W. 830; and Brown v. Griswold, 109 Wis. 275, 85 N. W. 363. The latest case bearing upon tbe subject is Jansen v. Huerth, 143 Wis. 363, 127 N. W. 945; and this case, as well as. Closuit v. John Arpin L. Co. 130 Wis. 258, 110 N. W. 222, and Brown v. Griswold, supra, furnish instances where judgments were reversed largely because of tbe failure of tbe court to make specific findings. It has frequently been held that while it is error not to make such findings as are required by sec. 2863, Stats. (1898), it is not necessarily reversible error, but that general findings are not within tbe rule that the decision of tbe trial -court with respect to disputed matters of fact will not be disturbed on appeal unless against tbe clear preponderance of tbe evidence. Chippewa B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603; Farmer v. St. Croix P. Co. 117 Wis. 76, 81, 93 N. W. 830, and cases cited; Closuit v. John Arpin L. Co., supra. Tbe latter case presents as clearly and definitely as any the attitude of this court toward general findings. It is said ■that such findings leave tbe court in a predicament where it' [125] may pursue one of three courses: “To affirm the judgment if' clearly supported by preponderance of the evidence; to reverse if not so supported, ordering judgment in accordance with wbat appears to this court to be the preponderance; or,, if that course seems to present peril of injustice, to remand, for further trial and findings.” Naturally, if this court undertakes to determine which way the evidence preponderates, it must take the testimony as it finds it in the printed record, and very often this cannot be done with safety. The case before us presents a situation where there is a conflict in the evidence of such a character that it is hardly possible to account for it on any other-hypothesis than that the witnesses on the one side or the other were lying. It may well be that they were doing so on-both sides. It is, of course, axiomatic that the preponderance of the evidence in a case does not necessarily rest in favor of the party who has produced the greatest number of witnesses to testify to essential facts. The looks, the voice,, the attitude, the general demeanor of a witness may convince a trial court that he is untruthful, while the printed record may put his testimony in as favorable a light before this-court as that of a witness in whose candor and honesty the trial court justly and properly placed implicit reliance. So-the cases are not numerous in which this court may in effect perform the functions of a trial court in weighing evidence and determining where the preponderance rests. A goodly part of the evidence in the case before us was-given by moral degenerates. A large number of witnesses were sworn on either side and there was much conflict in the-testimony on material points. The case is essentially one where this court is entitled to the full benefit of specific findings by the trial court, to the end that we may know what his-views are on the essential questions that were litigated. We do not think it is one where this court can or should attempt to determine from the record whether the conclusion of the [126] trial court is supported by tbe mere preponderance of the evidence or not. The case presents the third situation referred to in Closuit v. John Arpin L. Co., supra. We can well believe that the trial court was thoroughly nauseated with the disgusting character of the evidence presented, and that the case was therefore summarily disposed of. But •either of the parties had the lawful right to appeal to this •court from an adverse judgment, and to have the case fully and fairly considered in this court, and to give it such consideration it is essential that specific findings of fact be made covering the material controverted issues in the case. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to the trial court to take further evidence in the case, if it be deemed necessary or advisable so to do, and to make findings of fact and conclusions of law upon the evidence before it, in accordance with the requirements of sec. 2863, Stats. (1898). Timlin, J., took no part. The respondent moved that the mandate be modified so that the reversal should be without costs. The motion was granted February 21, 1911.