King Auto Serv. v. Hodges

• Decision Date: 27 May 1930
• Docket Number: Case Number: 19485
• Citation: 1930 OK 269,288 P. 483,143 Okla. 260
• Parties: KING AUTO SERVICE et al. v. HODGES.
• Court: Oklahoma Supreme Court

1930 OK 269

288 P. 483

143 Okla. 260

KING AUTO SERVICE et al. v. HODGES.

Case Number: 19485

Supreme Court of Oklahoma

Decided: May 27, 1930

Syllabus

¶0 1. Evidence--Admissibility of Testimony of Nonresident Plaintiff Given at Former Trial.

Where, as in this case, a party to the suit was a nonresident of the county in which the trial was had, it was competent for the official court reporter to read from her stenographic notes the plaintiff's evidence given in the former trial in lieu of taking the party's deposition.

2. Trial--Effect of Demurrer to Evidence.

The test applied to a demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn therefrom, are admitted. The court cannot weigh conflicting evidence, but must treat as withdrawn the evidence which is most favorable to the demurrant.

3. Evidence--Declarations of Vendor to Prove Fraud in Sale of Goods.

The declarations of a vendor of goods, claiming the goods and inconsistent with an absolute sale, made after the sale and while he remains in the actual possession of the goods, are competent evidence for the purpose of proving fraud in the sale.

4. Trial--Instruction Invading Province of Jury.

The court cannot invade the province of the jury by advising them as to his opinion of the evidence. An instruction which suggests to the jury that they return a verdict for one of the parties is reversible error unless a directed verdict is proper.

Commissioners' Opinion, Division No. 2.

Error from District Court, Okmulgee County; James M. Hays, Judge.

Action by Alice Hodges against King Auto Service and R. Ward. Judgment for plaintiff, and defendants appeal. Reversed.

L. L. Cowley, for plaintiffs in error.

H. S. Samples, for defendant in error.

EAGLETON, C.

¶1 Alice Hodges brought suit against King Auto Service, a corporation, and R. Ward, for the conversion of an automobile, alleging that the corporation had a judgment against Dr. O. T. Bennett and Mrs. O. T. Bennett, his wife, doing business as Drs. Bennett & Bennett, on which it caused execution to issue and caused her automobile to be levied on and sold as the property of Dr. Bennett to R. Ward, and prayed for damages therefor. Plaintiff prevailed, and the defendants appeal. The parties will be referred to as they appeared in the lower court.

¶2 The defendants urge as cause for reversal that the trial court permitted the official court reporter, who took the evidence of the plaintiff in the first trial of the cause, to take the witness stand and read her stenographic notes covering the testimony given by Alice Hodges. They contend that no proper predicate was laid to make the former testimony of Alice Hodges competent in the second trial, and that the stenographic notes were not transcribed and certified in the cause so as to make this evidence competent to be used as a deposition under the provisions of section 3071, C. O. S. 1921. Attorney for plaintiff, as a predicate for the introduction of this testimony, took the witness stand, and testified that Alice Hodges did not live in Okmulgee county, where this cause was pending and being tried, and that she was in California prior to the first trial, and returned to the state for the purpose of testifying on that occasion; that on returning from California, she stayed in Tulsa until called to Okmulgee by her attorney to testify; that after the trial she went to Tulsa and advised her attorney that she should be communicated with at Tulsa; that he should write her "General Delivery, Tulsa, Okla;" that he did write her at Tulsa on more than one occasion, and did hear from her from there; that he heard from her last about a year or year and a half before the second trial; that when the cause was set for trial a second time, he immediately wrote to her at Tulsa, and had not heard from her; that his letter was not returned. The court upon this showing allowed the court reporter to read from her stenographic notes the testimony given by the plaintiff in the former trial. We think this was not error.

¶3 Sections 612 and 626, C. O. S. 1921, provide that depositions may be used when the witness does not reside in the county where the action is tried, or is absent therefrom, but that same shall not be used until cause be shown why the attendance of the witness cannot be procured. This court has repeatedly said that the absence of the witness from the county, the nonresidence of the witness from the county, is sufficient predicate to allow the use of a deposition. Cooke v. Coronado Oil Co., 112 Okla. 240, 240 P. 739; Bride v. Bride, 131 Okla. 176, 268 P. 212.

¶4 A party to an action may testify, and his testimony may be taken in a like manner as any other witness. Cooke v. Coronado Oil Co., supra.

¶5 It was established to the satisfaction of the trial court that the plaintiff was a nonresident of Okmulgee county, and his determination will be final and binding on this court unless an abuse of discretion is shown, unless such a determination is not sustained by any evidence. A., T. & S. F. Railway Co. v. Baker, 37 Okla. 48, 130 P. 577, L. R. A. 1915A, 1186, Ann. Cas. 1915B, 714.

¶6 We are not unmindful that there is a wide diversity among the courts of the several jurisdictions in this country with reference to the admission of former testimony and the conditions prerequisite to its introduction. Many states have no statutory provisions with reference to its admission. Others do have. Many states having provisions prescribing regulations for its admission require that a deposition be taken, if possible, in preference to the introduction of the former testimony. Others require that the witness be brought in, or a deposition be taken, if possible, in preference to the introduction of the former testimony. Others require that the witness be brought in or a deposition taken, if possible, and that the former testimony be not used unless the impossibility to present the witness or to take his deposition be shown. However, Oklahoma, by statute, has established a more liberal rule by providing that the official reporter may transcribe the testimony, certify to its completeness and accuracy as filed in the cause, and this transcript may then be used in like manner as a deposition. C. O. S. 1921, section 3071. This court, in interpreting that section in Oklahoma Railway Co. v. Boles, 30 Okla. 764, 120 P. 1104, stated that:

"It is not necessary to refile the transcript so made, where the original notes have been on file,"

--and again that it:

"was enacted as an extension to the use of stenographer's notes and not as a limitation upon such use, and that it was proper for, the trial court to permit the stenographer to read his stenographic notes of the testimony of witnesses taken upon a former trial."

¶7 This court again, in A., T. & S. F. Railway Co. v. Baker, 37 Okla. 48, 130 P. 577, L. R. A. 1915A, 1186, Ann. Cas. 1915B, 714, in considering the complaint made to the admission in evidence of the testimony given at a former trial where the objection was urged, said:

"So far as the record shows, this witness is a nonresident of the state, and not subject to the court's process. He was produced by the defendant at the first trial, although he lived in another state at the time. He was not present at this trial. His deposition could have been taken perhaps, but he had been before the court once and had been fully examined by both sides"

--and approved the admission of the former testimony, stating:

"It has been held by the Supreme Court of the state of Arkansas that the question of whether a proper showing has been made, as to the absence of the witness, rests largely within the discretion of the trial court, and his action in the exercise of such discretion will not be reversed on appeal unless a gross abuse thereof is shown."

¶8 The testimony in that case was preserved and presented from the case-made used in the appeal from the former trial. The first paragraph of the syllabus of St. Louis & S. F. Ry. Co. v. Walker, 61 Okla. 37, 160 P. 79, said:

"Before the longhand transcript of the testimony of a witness, given at a former trial, can be admitted in evidence at a subsequent trial of the same case, it must be duly certified by the reporter of the court who took the evidence as correct, or agreed to by the parties as being the evidence of such witness and as being correct, and, then, it can only be used under such conditions as would warrant the use of the deposition of such witness."

¶9 The trial court in that case held that the testimony of the attorney for the railroad company had made insufficient showing and predicate for the introduction of a deposition by testifying that he had written to his chief counsel without the state of Oklahoma, who wrote him that the witness was in another state. On appeal, this court held that the trial court did not abuse his discretion in so holding. The court further found that the transcript of the testimony was in itself sufficient to be used as a deposition, under section 3071, C. O. S. 1921.

¶10 In K. C., M. & O. Ry. Co. v. Roe, 72 Okla. 238, 180 P. 371, it was held that evidence appearing in a case-made was properly admissible where the proper predicate for the admission of the former testimony had been laid.

¶11 Not only has this court approved permitting a reporter to read from his stenographic notes the testimony of a witness given at a former trial, then without the reach of the process of the court, or where a deposition of the witness could properly be introduced, but this is well sustained by reason and other authority. Wigmore, in his monumental work on Evidence, says:

"1396. Witness' presence before tribunal may be dispensed with, if not obtainable. The question, then, whether there is a right to be confronted with opposing witnesses is essentially a question whether there is a right of cross-examination. If there has

...