Rogers v. Donovan

• Decision Date: 14 February 1974
• Citation: 268 Or. 24,518 P.2d 1306
• Parties: George T. ROGERS and Lola E. Rogers, husband and wife, Appellants, v. Edward J. DONOVAN and Lorraine T. Donovan, husband and wife, Respondents.
• Court: Oregon Supreme Court

Page 1306

518 P.2d 1306

268 Or. 24

George T. ROGERS and Lola E. Rogers, husband and wife, Appellants, v. Edward J. DONOVAN and Lorraine T. Donovan, husband and wife Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 9, 1973.

Decided Feb. 14, 1974.

Reuben G. Lenske, Portland, argued the cause and filed a brief for appellants.

Darrell E. Bewley, Portland, argued the cause for respondents. With him on the brief was Francis F. Yunker, Portland.

HOLMAN, Justice.

Plaintiffs brought an action for damages, claiming defendants had interfered with their prescriptive right to the use of a ten-foot strip of defendants' premises for ingress and egress to the rear of plaintiffs' property. There was a prior trial in which defendants were successful, but upon appeal the result was reversed and the case was remanded for a new trial. 261 Or. 124, 492 P.2d 768 (1972). Upon retrial, defendants were again successful and plaintiffs again appeal.

The only issue is whether the trial court erred in refusing to admit in evidence, at the request of plaintiffs, a transcript of the testimony in the first trial of one of the plaintiffs, Mrs. Rogers. The only record upon which to base the admission of the transcript was the following testimony of the other plaintiff, the witness's husband, Mr. Rogers:

'Q And with whom do you live there?

'A With my wife, Lola Rogers.

'Q Where is she at the present time?

'A She is down at Redondo Beach, California, with her daughter.

'Q What is her purpose in being there at the present time?

'A Well, she has arthritis and rheumatism, and can hardly get around, so her daughter wants to take care of her for several months.'

Plaintiffs contend the transcript was admissible under ORS 41.900(8), which provides as follows:

'Evidence may be given of the following facts:

'* * *.

'(8) The testimony of a witness, deceased, or out of the state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter.

'* * *.'

Mrs. Rogers was shown to have been out of the state and she was a witness in the former proceeding between the same parties relating to the same matter. Therefore, her former testimony, literally, complies with the requirements of the statute for admission. However, the statute in question has been held to be declaratory of the common law. ¹ That being the case, the statute is not the exclusive authority, because as McCormick says:

'* * * (W)hen the common law imposes a restriction not mentioned in the statute, the restriction has been said to govern, unless the circumstances show a legislative intention to abrogate it.' ²

The common law which is codified in the statute is the reported testimony exception to the hearsay rule. ³ The exception allowing such testimony is designed to secure relevant and material evidence which is demonstrably trustworthy because it was given under oath and subject to cross-examination and which would otherwise be lost due to the death or unavailability of the witness. However, the witness must not be beyond the process of the court by the procurement or instigation of the offering party. ⁴ The reason for requiring as a prerequisite unavailability and an unprocured absence is that the witness's presence may be desirable for questioning concerning new issues, new information, or new ideas which have arisen or have come to mind since the prior trial, ⁵ and also that the jury may be furnished an opportunity to observe the witness's demeanor. A party should not be able voluntarily to escape examination or observation and to receive the benefit of his former testimony.

While a witness may be beyond the jurisdiction of the court, a party never is insofar as trial and disposition of the case are concerned. Nevertheless, a party may have a valid reason for being out of the state and in not being present at trial and may have a real necessity for using his prior testimony which outweighs the possible disadvantages to the other party resulting from his opponent's absence. If there is not a valid reason for a party's absence, the party, in effect, has procured his own absence. While it is not clear whether a party who seeks to use the former testimony of a witness must first make a showing that the witness is not outside the state or otherwise unavailable by his procurement, or whether the other party has the burden of showing the witness's absence or unavailability was procured, in the case of a witness who is a party, he should not be permitted to absent himself from trial and to use his prior testimony without first making a showing of reasonable necessity for his absence.

In Goodman v. Wineland and Wife, 61 Md. 449, 455--456 (1883), in discussing why the trial judge had been wrong in allowing a plaintiff who was out of state to have his testimony presented by deposition because he literally came within a statute relating to witnesses, the court said:

'* * * While suitors are competent as witnesses, they do not lose their relation to the case as parties, and their capacity as witnesses must be exercised subject to such abridgment or modification as springs from their twofold character. * * * As a general principle, in contemplation of law the plaintiff is within the jurisdiction of the Court wherein he sues, and actually present in person or by attorney in the conduct of the cause; and to permit him to prosecute his suit, and yet have himself dealt with as one outside the jurisdiction and beyond the process of the Court he is employing to recover a judgment, is an anomaly inconsistent with a sound construction of the rights of suitors. But while this is so, to take the position that in no case can the plaintiff's testimony be taken by commission would frequently work a denial of justice. In case of extreme old age, chronic infirmity or other permanent disability, where his personal attendance in Court would be impossible, although his right to bring his suit could not be questioned, unless the plaintiff were allowed to testify at his place of residence, he might be deprived of his only means of establishing his demand, and thus be left without remedy against a possibly dishonest defendant.'

This language is likewise applicable to the situation in this case.

In the present case, a showing of necessity has not been made. We have no way of knowing how necessary it was for Mrs. Rogers to be in California for care by her daughter at the time of trial. She may have left the day before trial though she may have been able to remain for it, or she may have been gone for months and not been able to return. The defendants contend she left the week before trial, but the record is devoid of anything that shows when she left.

In the actual cases litigated the common law rule of admissibility of reported testimony has had a varied reception when the witness whose testimony is sought to be introduced is a party litigant. Some cases hold that a party has control of his own presence and must return to the court. ⁶ Some have held that the reported testimony of a party should be treated as that of any other witness, and if the statutory provisions are complied with, it should be admitted. ⁷ Some have adopted what we hold to be the best view: that a party must show a valid and substantial reason why he cannot attend trial. ⁸ The cases cited for each of these solutions contain cases in which the reported testimony was a deposition instead of a transcript of testimony from a prior trial. Wigmore states there is no valid distinction between the use of depositions and former testimony as to the conditions under which either may be used at trial, ⁹ and we perceive none. In Oregon the admissibility of a deposition of an absent witness is by statute subject to the requirement that the party seeking admission of the deposition not have procured the absence of the deposed witness. ¹⁰

The judgment of the trial court is affirmed.

Affirmed.

TONGUE, Justice (specially concurring).

I concur with the result reached by the majority, but not with its reasoning. It is a 'familiar rule of statutory construction' that '(c)ommon law terms used in statutes are presumed to have been used in their common law sense.' ¹ It does not necessarily follow, however, as suggested by the majority, that whenever the legislature adopts a statute on a matter which is the subject of a common law rule, this court can first declare that the legislature intended to adopt the common law rule and then 'read into' the statute 'a restriction not mentioned in the statute' and which may or may not have been intended by the legislature. Neither is it necessary, in my opinion, to rest our decision in this case upon the theory that testimony given by a party at a former trial is not admissible under ORS 41.900(8) unless it is shown that such testimony is not unavailable because of 'procurement or instigation of the offering party.'

In my view, the proper basis for our decision in this case is as follows:

The only issue raised by the appellant's assignment of error is whether the trial court erred in refusing to admit in evidence a transcript of the testimony given in the first trial by one of the plaintiffs, Mrs. Rogers. Her prior testimony was offered by plaintiffs under the exception to the hearsay rule provided by ORS 41.900(8). It appears that at the time of the trial of this case Mrs. Rogers was in California with her daughter. Mr. Rogers testified that 'she has arthritis and rheumatism, and can hardly get around, so her daughter wants to take care of her for several months.'

Plaintiffs contend that on this showing the transcript of her previous testimony was admissible under ORS 41.900(8), which provides that:

'Evidence may be given of the following facts:

'* * *

'(8) The testimony of a Witness, deceased or Out of the state, or unable to testify, given in a former action * * * between The same parties, relating to...