(concurring and dissenting) .
*399I concur in that portion of the main opinion that reduces the verdict from $95,833 to $63,542. I disagree with the reversal of the trial court’s judgment in favor of the defendant. This, primarily, because I am convinced that the facts in this case were not shown by clear and convincing evidence which we may weigh in an equity case, as must be done where fraud is the issue. This court has insisted on such quality of evidence in cases like this, on more than one occasion, one of the most recent pronouncements of which was made by Mr. Justice Crockett in Pace v. Parrish,1 where he stated that “The burden was upon the plaintiffs to prove the fraud charged by clear and convincing evidence” (citing four other Utah cases).
Sustaining an award for punitive damages, in my opinion, is unthinkable. Not only is there an absence of clear and convincing evidence of malice, but there appears to be a clear and convincing absence of any evidence of malice at all. To conclude otherwise is a paternalism quite alien to the philosophy of veniremen sitting in like cases in the mother lode and grubstake era.2
The main opinion repeats the oft-repeated aphorism about “reviewing the evidence and every reasonable inference fairly to be drawn therefrom in the light most favorable”- to plaintiffs. I like the paraphrasing of the rule in the concurring opinion in the former Holland case 3 where it was said:
“Viewing the evidence in the light most favorable to the plaintiff does not mean that the court should pick out all of the aspects thereof favorable to supporting plaintiff’s claim and ignore those that indicate to the contrary. It means that the court surveys the whole picture, takes into consideration facts and inferences therefrom tending to favor the plaintiff’s position, and also considers other facts appearing which must be accepted as a matter of law, and weighs the whole matter against the background of legal precepts bearing on the problem * *
The writer of this dissent considers the language last above quoted as more nearly applicable here, and more nearly substan-tiative of the conclusion that fraud and malice were not shown here by clear and convincing evidence. The trial court seemed to agree.
The word inference used in this case and in the former Holland case, compels agreement, I think, with this writer’s views when the connotation given it by Mr. Justice Jones, author of the former Holland opinion is noted in the following words:
*400“Inferences are made for the purpose of aiding reason, not to override it. Maggio v. Zeits, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476. Inferences are nothing more than probable or natural explanations of facts * * *. Common sense and reason dictate that evil inferences should not be permitted to be drawn from routine business transactions where there are no other circumstances. • To hold otherwise would throw the door open for an attack on each and every transaction that one might enter into. Every vendor who might feel aggrieved because he wasn’t paid enough money for his property should not be permitted to come into court and have his case submitted to the trier of the facts merely because it is subsequently ascertained that he made a bad bargain. And those who are willing to sign most anything in order to obtain money should not be permitted to lightly cast aside these solemn documents and vitiate transactions which have long since been consummated.”
I commend the above language to the plaintiffs in this case, who, after waiting-three years, decided to sue because someone else received a larger sum in a mining property transaction, where in similar situations, a $100 grubstake more than once has resulted in sums dealing in six and seven figures to the one furnishing the wherewithal to dig, with the perfect understanding by community and court that such disparity did not vitiate a binding contract. I say this, and justify my belief that the nub of this case is not fraud but disparity, by pointing to the frequent and repeated self-serving suggestions and statements in plaintiffs’ brief as to the great disparity of recovery by the parties, — a matter that has absolutely nothing to do with the case.
The trial court’s judgment should be affirmed.4 He apparently agreed with me that fraud and malice were not shown by clear and convincing evidence.
. 122 Utah 141, 247 P.2d 273, 274.
. I think this case to be a somewhat modern version of such an agreement.
. Holland v. Columbia Iron Mining Co., 4 Utah 2d 303, 293 P.2d 700, 705.
. We have other rules that say we must pay great respect to the trial court’s judgments, and should disturb them only when clearly arbitrary, etc.