(dissenting).
If the facts in this case had been tried to a jury with proper instructions, a simple verdict for the defendant would very likely stand. By agreement, the case was tried to the court. Thus, a judge, instead of twelve jurors, decided the facts. That does not expand our license to re-evaluate the evidence.
Juries are instructed that it is their province to believe or not to believe — to accept or reject — the testimony of any witness and to give the testimony of each and every witness such weight as they (not this Court) deem appropriate. This includes expert witnesses. See S.D. Pattern Jury Instruction 2.12.
*121As the majority opinion notes, the “clearly erroneous” rule of SDCL 15-6-52(a) does not apply to testimony introduced by deposition. Geo. A. Clark & Son, Inc. v. Nold, 85 S.D. 468, 185 N.W.2d 677, cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971). In this case, however, there was substantial personal evidence received at the trial from Robert Schmitz and both appellants. The findings of the trial court seem to rest primarily on that testimony. On appeal, we must review all of the evidence, not only the deposition testimony. When so viewed, the “findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witness.” SDCL 15-6-52(a).
The findings of the trial court are presumptively correct. In re Daly’s Estate, 59 S.D. 403, 240 N.W. 342 (1932). It has been our rule since territorial days that a court of last resort will not set aside or disturb a verdict of a jury, or a finding of a court when acting in the place of a jury, when it appears from the record that there was evidence on the point determined substantially tending to support it. In other words, the Supreme Court will not disturb a finding of the trial court where the testimony concerning it is conflicting, even when in our opinion it is against the weight of the evidence. Phillip Best Brewing Co. v. Pillsbury & Hurlbut Elevator Co., 5 Dak. 62, 37 N.W. 763 (1888). In my opinion, that rule should not now be diluted.