I reaffirm my dissent to the original opinion and again dissent to the revised opinion made in response to the petition for rehearing.
The arguments supported by numerous authorities set forth in the petition for rehearing are unanswerable and the rehearing should be allowed. There is no rule of law more firmly established than that the findings and decree of a trial court will not be set aside unless the evidence clearly preponderates against them. This rule goes hand in hand with the equally well-established rule that the trial court, sitting without a jury, is the finder of the facts, and, on the review of the proceedings by this court on appeal, only questions of law will be reviewed. American jurisprudence is firmly established on this course of procedure, which is grounded upon our Constitution, statutes, and court decisions. The only occasion which will justify this court in stepping out of its firmly established role is where there is no substantial evidence to sustain the verdict of a jury or the findings of the trial court. These rules are so firmly established citation of authority would be mere surplusage. It was for the trial court to determine where the preponderance of the evidence lay in the case at bar, and the record confirms his judgment that it was on the side of the plaintiff.
Rehearing denied January 31, 1946. *Page 127