in a claim for reformation of a deed, stating: “ ‘[W]hen the intention ... of a certain person at a particular time ... is material to the issues under trial, evidence of such person’s declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule.’ ”
How later courts described this case
- in a claim for reformation of a deed, stating: “ ‘[W]hen the intention ... of a certain person at a particular time ... is material to the issues under trial, evidence of such person’s declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule.’ ”
- "[W]e are required to determine whether within a rather restricted zone the evidence is sufficient to satisfy us that the trial judge could ... reasonably find that the evidence was both quantitatively and qualitatively sufficient to be clear and convincing."
- "[Wle are required to determine whether within a rather restricted zone the evidence is sufficient to satisfy us that the trial judge could ... reasonably find that the evidence was both quantitatively and qualitatively sufficient to be clear and convincing."
Written by the judges who cited it.
The opinion
WOLFE, Justice
(concurring specially).
I think the main opinion fairly well covers the province of this court in determining whether the fact finder should be sustained in his conclusion that the evidence has reached the degree of proof which the issue requires.
Perhaps it may contribute to point out that the rule of Stanley v. Stanley, 97 Utah 520 , 94 P. 2d 465 , applies to all degrees of proof. In that case the degree of proof required was one of fair or perhaps only mere preponderence. We said (in the concurring opinion) that if, after we read the record, it seemed to us that the evidence appeared to preponderate slightly against the conclusion of the fact finder, we would still affirm him because of the imponderables mentioned in the main opinion. Of course where the evidence was all documentary or of a nature as found in the case of Greco v. Grako et al., 85 Utah 241 , 39 P. 2d 318, 322 , where the preponderance was so greatly “in favor of a conclusion different from that arrived at by the trial judge that the unrecorded parts of the trial could not *441 reasonably be expected to change such apparent preponderance, or where, * * * some fact independent of any element which might affect the credibility of witnesses speaks eloquently of a wrong conclusion by the trial judge, the rule does not apply.” But otherwise, there is no reason why we should not if the degree of proof required is of the clear and convincing caliber uphold the findings of the trial judge as to his conclusion that the evidence reached that degree even if the evidence as we read it appears to us to fall slightly short of being clear and convincing. That is exactly the rule laid down in Stanley v. Stanley, supra. In both cases we thus give effect to the imponderables not revealed by the record.
In this way, we not only make allowance for the imponderables not revealed to us by the record but we also include some margin for the type of mind of the fact finder which is the margin which the “reasonable man” theory allows for differences in reasonable minds. Some minds are cautious, very conscientious, and come to their conclusions with great sense of responsibility and deliberation. But a slowly acting mind is not necessarly more accurate nor more sound than a fast one and quickness of mind noes not necesarily denote lack of consideration. Because there is a margin for different minds to react differently from the same evidence and even with the benefit of the imponderables, and still be within the area in which a mind may operate reasonably — that is with reason, we have in the past recognized the reasonable man test.
This is why in the case of Greener v. Greener, 116 Utah 571 , 212 P. 2d 194, 206 , where we also confronted clear and convincing evidence rule we said:
“We think that the evidence and the conclusions which could reasonably have been made therefrom were such to permit the mind of the trial judge to attain as a reasonable man to the state of being clearly convinced * * (Italics added.)
The thought that I am anxious to emphasize is that while *442 we take into consideration the advantaged position of the fact finder in that he views the live scene as against our reading the dead record, there must also be a factor allowed for differences' we may expect in reasonable minds. We cannot set up our conclusions as being the only ones which reasonable minds could arrive at even had we had the advantage of the imponderables.
On the other hand the degree of proof which requires clear, unequivocal and convincing evidence in order to conclude for or against a certain issue is of importance and should be observed. It is used where one is charged with fraud because a party should not be stigmatized with fraud by a simple preponderance of evidence; in cases where it is necessary to set aside a release or a contract because of claimed fraud or mutual mistake of fact; in cases where reform of a contract is asked to comport with what is claimed to express the alleged real intent of the parties at the time the contract was made; in those cases where the courts are asked to do something which will change the situation from that which on the surface appears to be where the parties have placed themselves or where the situation should remain as it exists unless the court is morally convinced that justice requires that it be altered and in other cases where public policy requires that the status be not disturbed unless the proof goes beyond a mere or fair preponderance.
But there are degrees of proof between evidence which merely or barely preponderates and where it preponderates to a convincing degree just as there may be degrees between that evidence which convinces and that which proves a fact to a certainty. Evidence may be such as to create a definite probability that a conclusion is correct but not reach convincingness. It may have passed the point of equipoise and also the point of bare or mere preponderance and reached a point of definite probability, but may not have reached the point of conviction, I have taken occasion *443 to dwell at some length on these degrees of proof because there is an increasing tendency to ignore them and put all proof on a flat plane of mere preponderance. And this sort of result may be accomplished by the legerdemain of telling ourselves as reviewers that if it is convincing to the trial judge regardless of how it appears to us, we should accept it as convincing to us. I do not go that far. I think such reasoning is definitely on the side of retrogression.
While it may entail some repetition of evidence considered in the main opinion, I think I can best illustrate the application of the principles above mentioned by applying them to myself as a reviewer. We find several outstanding pieces of evidence which tend to establish the fact not only that the Sines intended to buy the 75' but that Mrs. Jensen must have known that they so intended. I now first consider how the evidence as we read it from the record could have affected and influenced the mind of the fact finder (the lower court in this case) whom we assume is a reasonable mind trained for evaluating evidence so as to reach the stage of conviction. Second, I shall then compare the results of this analysis with the result when I consider the evidence from my own examination of the record assuming that I also have a reasonable mind trained to evaluate evidence. The trial court may have concluded that the evidence in favor of the plaintiff so definitely overcame the probative effect of the evidence in favor of the defendants and clinched the conclusion of mutual mistake that the evidence of such mistake was to the trial court clear and convincing. I refer to the following: Mrs. Jensen had treated the property as one and not two pieces. She knew that Sine wanted to buy the property to square off his holding to the east and north; that this was inconsistent with his purchasing a part of the whole frontage and leaving 25 y% of it in between.
She knew the price offered was more than $100 a front foot if the whole 75' were purchased. This would yield a *444 good price for the whole. If she wanted $8500 for the 49.5', she wanted nearly $170 per front foot, seemingly far more than the property was worth, and more than twice as much as any other property in the neighborhood sold for, at least according to the evidence.
If the idea of being convinced means that all reasonable doubt has left the fact finder’s mind — which I think must attend the convinced state — I am not prepared to say that judging from the transcript, that mine would have been in that state. I conclude that judging from the record alone that I would have thought there was more than a simple preponderance that is a fair probability of a mutual mistake of fact, but not a convincing preponderance. However, the trial judge who saw and heard the witness may, as a reasonable man, have been convinced of the existence of a mutual mistake.
I am going into these different states of mind to show why I, on the face of this record would not have been convinced. I would still have what I think would be a reasonable doubt because the evidence itself was subject to substantial contradictory inferences. But I realize that I am not the fact finder but only a weigher of the evidence in cold print which was adduced before the fact finder in live form and that the fact finder, as says the main opinion, had the imponderables before him which may have supplied the clinching element. Even though in reading the record I would not have found it clear and convincing as I interpret that phrase, I cannot say that, taking into consideration the imponderables the trial judge did not operate on the evidence as a reasonable man and that as such he could not have come to the conclusion that the mutual mistake of fact appeared to him to be clear and convincing. Certainly it was not so far short of being free from reasonable doubt to me from a consideration of the record as to enable me to say that I would not have been convinced as was the trial judge if I had seen and heard the witness.