Gilmartin v. Stevens Investment Co.

Olson, J.

(dissenting) — I agree with Judge Schwellen-bach, and also dissent for additional reasons.

Trial judges should assign forthright reasons for their decisions. If they do not find any witness credible, they should say so. To state the actual reason why a case fails, is more proper than to hope to obtain an affirmance by the statement of some other reason. It is regrettable that the consequences of the former course may be adverse to a litigant, as is shown in this case by the suggestion of the majority that,

“. . . in view of the other general evidence, in addi *304 tion to the opinion testimony as to value, a trial court finding that there was no substantial damage, had such a finding been entered, would probably not have been disturbed by this court.”

Further, the majority state that a minimum dollar amount of damages is disclosed by the evidence. But, they say, if the court had wished to award a dollar amount less than this lowest range of the proof, it could have done so. However, they do not show what evidence there is in the record that would sustain such a lesser award or its amount. How low could the award have been? The experts who testified upon value could do no more than give a dollar value, and, if the court were to disregard either the upper or lower range of this testimony, it would seem that it would be disregarding the testimony entirely and entering the realm of speculation. Clearly, in that event, defendant would have a reason to complain.

If the trial judge did not believe the witnesses (and the majority concede he was not obliged to do so), his failure to guess at an amount approximating the incredible testimony should not be error. In this sense, there can be no degree of credibility. The trier of the facts, after observing a witness, cannot say that he is partially honest and, by any standard yet discovered, discount an amount to which he testifies to allow for a percentage of credibility. Evidence from an incredible source has no probative value.

This is not the first, nor will it be the last, case which has turned upon the difficult question faced by every trier of the facts — what testimony is worthy of belief? What will the trial judge do when, under the obligation placed upon him by the majority, he has aided the plaintiff to bring evidence which he believes- and finds sufficient? If he is to be fair, he should give similar assistance to the defendant. Somewhere in the process he must escape his dilemma and disbelieve somebody. Whether he produces the witnesses (a function which he never should be obliged to perform) or whether counsel bring them, the trier of the facts cannot escape the task of resolving, in each case, where the credible evidence is.

*305 Many cases fail for the lack of credible evidence. Often such evidence is not available. In any event, a party should expect but one hearing on any issue. It is presumed that he will bring to this one hearing the best evidence he can obtain to support his case. When he rests, he, his opponent, and the court should expect, in fact, should rely upon the proposition that he has done his best. If a party fails at one hearing, can it always be said that he can do better a second time? Even if he can, that fact of itself is no reason to give him the unfair advantage which he must obtain from the opportunity.

Because of the comment upon the subject in the majority opinion, an inference may appear that the trial judge was obliged to intimate his view upon the credibility of the experts before the trial was concluded. It certainly cannot be intended that the testimony of each witness must be weighed, and accepted or rejected by a ruling or statement regarding his credibility or veracity, when his testimony is completed. Corroboration of any witness, including experts, is always a possibility until both sides have rested. It would seem- that the court’s mind should be open until that time.

Also, it seems irrelevant that the court ruled that the experts were qualified to express an opinion. The majority agree that their qualification or competency and their credibility are not interdependent, when they say the court was not obliged to accept the testimony of any of them.

It is not clear upon what authority the judgment is set aside. There is no petition for its vacation or modification. In fact, none of the statutory grounds for such relief exist in this case. RCW 4.32.240, 4.72.010 et seq. [cf. Rem. Rev. Stat., §§ 303, 464 et seq.]; Rule of Pleading, Practice and Procedure 13, 34A Wn. (2d) 77. In any event, such action is not within the powers conferred upon this court on appeal, by statute or rule. RCW 4.88.190 [cf. Rem. Rev. Stat., § 1737]; Rule on Appeal 16, 34A Wn. (2d) 23. Also, the grounds selected by the majority for granting a new trial in this case are not clear, unless it be the failure of plaintiffs’ proof. None other appears, and this ground is not found in any precedent or statute.

*306 There was no motion by the plaintiffs to reopen their case. Of course, such a motion is not a condition precedent to an appeal, but, in this case, it should be such a condition to a successful appeal. It might have made the result of the majority opinion possible, upon the theory that the court abused its discretion in not granting that motion. The novel implication of the opinion is that the court should have made the motion for plaintiffs, just as it is implied that it should have developed their case for them. But this is not a judge’s work. His function is to decide, and it cannot be preserved if we expect or require him to consult, recommend, and act for counsel or approve his doing so. This is a judicial proceeding, not an investigation.

The judgment should be affirmed.

Donworth, J., concurs with Olson, J.