c34:No. 13746

COLLET, Circuit Judge
(dissenting).
I do not concur in the majority opinion for the following reason.
It is conceded that the declaration of trust did not require as a matter of law the conclusion that the trust was a taxable association. It is further conceded that the determination of the status of the trust for present purposes rested upon the proper factual conclusion to be drawn from the evidence. The trial court made definite findings on the determinative issue of fact and found from the evidence that the trust was not operated in such a manner that it could be characterized as a taxable association. The majority opinion concedes that the trial court’s findings in that regard have evidentiary support in the record. Those findings are set aside as “clearly erroneous” upon the hypothesis that this court is authorized to do so in spite of the clear admonition of Rule 52 of the Rules of Civil procedure, because it is said that from the entire evidence this court is left with the “definite and firm conviction that a -mistake has been committed” by the trial court in its findings. Reliance for such action is placed on United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746.
I do not believe the United States Gypsum Co. case was intended to or does apply to a case like this. Here the question of fact was a close one. That is amply demonstrated by the fact that the companion case of Nee v. Linwood Securities Co., 8 Cir., 174 F.2d 434, is affirmed upon substantially the same evidence, and upon the ground that the trial court’s finding of fact, being supported by the evidence, may not be disturbed. The trial court treated the factual situation in the Linwood Securities Co. case as being identical with the facts in this case. The appellant (the same in both cases) makes no effort to distinguish between them. But in this case we find what in my judgment is only a shade of evidentiary difference between the two cases, and upon that difference, indistinguishable to the trial court or the appellant, we conclude that the trial court’s evaluation of the evidence in this case was clearly erroneous because we have a firm and definite conviction that it made a mistake, while the finding in the other case is not disturbed. I do not believe that is the kind of a situation wherein we are authorized to substitute our judgment of the facts for the finding of the trial court. If I did think so I would have dissented in the very recent case of Woods v. Western Holding Corporation, 8 Cir., 173 F.2d 655, wherein the trial court found that the evidence showed the housing establishment in question was known as a hotel in the community in which it was located. An examination of the record in that case led me to the very definite and firm conviction that that finding did not reflect the weight of the evidence. My respect for the judgment of the trial court did not enter into my concurrence in the affirmance of the judgment based upon that finding. It was controlled by a more rigid compulsion — the mandate •of Rule 52.
The language used by the Supreme Court in the United States Gypsum Co. case was, -in my judgment, intended to be applied in the classes of cases such as those where a finding was based upon a mere “scintilla” of evidence, or, when a finding was so patently wrong that to follow it would humiliate the intellect of the reviewing court. I- do not'think that such a situation is presented by the record in this case.
If the rule of “firm conviction” is applied in this case, it seems to me that the purpose and intent of Rule 52 will not only be once transgressed, but that it will lead to a disregard of the factual findings of trial courts whenever an appellate court has a “definite and firm conviction” that even a narrow margin of the weight of the -evidence supported a different finding.
“ * * * Bindings of fact shall not be sot aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. * * * ” 28 U.S.C.A.

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