I concur in the conclusion reached in the foregoing opinion on rehearing but dissent from that part of it which, in effect, bases the rule that a judgment will not be set aside because of conflict in the testimony if the evidence which tends to support it would be sufficient to sustain it, on a statute.
In the first place, sec. 11-219, relied on in the opinion as a basis for the rule, relates to verdicts of juries and not to findings of fact by judges, and this case was tried and decided by a judge.
In the second place, sec. 11-219 violates Art. V, sec. 13 of the Constitution of Idaho, which is:
"The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the *Page 483 government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the Supreme Court, so far as the same may be done without conflict with this constitution."
The action to be taken by this court with respect to a verdict, or judgment, whether supported by substantial evidence or not, is not a proper subject for direction by the legislature.
However, this court has, in a great many cases, held that findings of fact by the trial judge, who presided at the trial and had an opportunity to observe the demeanor of witnesses when they testified, will not be disturbed because of conflict in the testimony, if there is substantial evidence to sustain them. That rule is firmly fixed in the case law of Idaho, and is not dependent on a statute. Among the recent cases wherein it has been followed are: State v. Snoderly, 61 Idaho 314,101 P.2d 9 (wherein a large number of Idaho cases on this point are cited); Estate of Brown, 61 Idaho 320,101 P.2d 11; Bussell v. Barry, 61 Idaho 350, 102 P.2d 280; IdahoLumber Hardware Co. v. Di Giacomo, 61 Idaho 383,102 P.2d 637; Gore v. Richard Allen Mining Co., 61 Idaho 622,105 P.2d 735. See, also, Phipps v. Boise Street Car Co., 61 Idaho 740,107 P.2d 148.