Although I concurred in the opinion filed herein, a review of the facts prompted by a petition for rehearing leads me to the conclusion that a rehearing should be granted.
While this court may not usurp the functions of a *Page 454 lower court in determining the weight and credibility to be given witnesses on their testimony, yet we may not close our eyes to indices which to a great extent disclose that testimony is ventriloquial in character.
It is elementary that if the lower court's findings are not supported by substantial evidence they cannot be sustained.
In the decision filed by this court on the 11th day of October, 1948, it is stated [198 P.2d 290, 297]: "We may say frankly that this witness' testimony (referring to the testimony of Carl L. Belz) was in our opinion greatly weakened by his cross examination, and much of his direct testimony above quoted was elicited by questions of the most leading and suggestive character. However, the weighing of these considerations is not within the province of this court."
Again in referring to the testimony of Mr. and Mrs. Frank E. Durham, the respondents in the above-entitled case, it is stated: "Again we note that the testimony of these two witnesses was materially weakened by the cross examination. Nor does it carry the weight that would be accorded it if the witnesses had used the language ascribed to them in the place of affirmative answers to leading questions. But, as noted, this was a matter for the consideration of the trial judge. He had the Durhams before him as witnesses not only in this trial but in the first trial and we cannot substitute our judgment for his in the matter of the weight to be given this testimony."
In commenting on these statements made in the opinion filed October 11, 1948, I wish to state that in the case of Canepa v. Durham, 62 Nev. 417, at page 425, 153 P.2d 899, 902,155 P.2d 788, Judge ORR stated in his opinion as follows: "If we could say, after a consideration of all the evidence in the case, that there is substantial evidence in the record to sustain the said finding, then under the rule often announced by this court we would be required to sustain the judgment. *Page 455 But after a careful consideration of the evidence we can reach no other conclusion than the Finding XXIX is without support as far as the evidence in this case is concerned."
In the case of Smith v. Goodin, 46 Nev. 229, 232, 206 P. 1067,1068, this court held that:
"The question to be determined is, Is the evidence sufficient to justify the finding and decision of the court? It is said on behalf of the respondent that the evidence is conflicting, that there is substantial evidence to support the findings and decision of the court, and hence the judgment must, under a long line of decisions, be affirmed. The evidence is conflicting, and there is substantial evidence to support the judgment, and it is true it is a well-recognized rule in this state that when the evidence is conflicting and there is substantial evidence to sustain the judgment it will not be disturned; but to this rule, as to nearly all well-established rules, there is an exception, as well recognized by this court as is the general rule, and as promptly and surely invoked and applied when applicable. We know of no better statement of the exception than is found in the language of the court in the case of Watt v. Nevada Central R. Co., 23 Nev. 154, 44 P. 423, 46 P. 52, 726, 62 Am. St. Rep. 772, where it is said:
"`Notwithstanding, the well-established rule which has been so often announced by this and other courts that "where there is a substantial conflict in the evidence the appellate court will not disturb the decision of the court below," there is another rule as well established and of as binding force, both in actions at law and in equity, addressed to the conscience and judgment of the court of last resort, which cannot be ignored without doing violence to the plain principles of common justice in many cases, to wit: "If there be no substantial conflict in the evidence upon any material point and a verdict or decision be against such evidence upon such point, or where the verdict or decision strikes the mind, at first *Page 456 blush, as manifestly and palpably contrary to the evidence, the Supreme Court will direct a new trial." Hayne, New Trial and Appeal, sec. 288 * * *, Barnes v. Sabron, 10 Nev. 217.'"
When we speak of substantial evidence we refer to something which has probative force. Evidence in "parrot fashion" by leading questions resolves itself into submitting to a court, indirectly by oath of a witness the data and information in the mind of the attorney. Such information thus received could scarcely be elevated to the dignity of a factual foundation and be characterized as substantial evidence.
For these reasons, I feel that a rehearing should be ordered in this case and that an order should be entered accordingly.