Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-20
Beard V. Royal NelghbOrs.

Decided October 10, 1911.
Frank NJ. Beard, appellant Y. Royal
Neighbors of America. corporation,
respondent. Appeal from the circuit
court for Douglas county. Hon ]. w.
Hamilton, Judge. Argued and submit
ted September 27, 1911. John T. Long
and Cardwell & Watson for appellant
Fullerton & Orcutt and Benjamin D.
Smith for respondent Burnett, J..
Affirmed.
Burnett, j. This is the second ap-
peal in this case. For the former opin-
ion see 80 Ore. 1O2; SO Pac SO.
In but two particulars, deemed i'm
pOrtant, does the record in the pres
ent hearing differ from the record in
the former case. ]. A. Eggers was
a witness for the defendant at the
first trial. Desiring at the present
trial to use the evidence then given
by Eggers, the defendant offered as a
witness j. C. Fullerton, who testified
that he knew Eggers residence to be
in Hepburn, Idaho, and that he was
not at the time, to the best knowledge
OF the witness, within the state of
Oregon. On this basis the counsel for
the defendant offered in evidence the
testimony of John A. Eggers, given
on the former trial of this case, in
the form of copy prepared and cer-
titled by the court reporter. At this
juncture the counsel for the plaintiff
said: I'VE object to the introduction
of the testimony in this manner"
This objection was overruled by the
court and upon this ruling error is
predicated on behalf of the plaintiff.
Section 727 L. o. L., Sub. s, provides
that evidence may be given on the
trial of 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 be-
tween the same parties relating to the
same matter. Section SS6 L. o. L..
provides that the testimony of wit
ness out of the state may be taken
by deposition in an action at law. The
preliminary question of the witness
being out of the state is sufficiently
satisfied by the testimony of the wit
ness Fullerton within the reasoning
of Wheeler V. McFeron, 80 Ore. 107;
62 Pac. 1915. Section S52 L. o. L..
declares that when a deposition has
been once taken, it may be read in
the same action, suit or proceeding.
The question then is whether the tes-
timony Of Eggers was correctly pre-
sented to the jury by the action of
the court in that respect. Section 932
L. o. L. provides that the report of
the official reporter when transcribed
and certified to as being a correct
transcript of the stenographic notes
of the testimony, shall be prima facie
a correct statement of such testimony
and may thereafter be read as the
deposition of a witness in the cases
mentioned in Section $50. The effect
Of this statute is to make the testi-
mony OF witness at a former trial
as quoted by the official reporter sub
stantially the deposition of a witness,
which may be read at any subsequent
hearing of the case, provided the wit
ness is without the state. 1t was
contended at the argument that the
cross examination of the witness Egg
gers was not produced before the
court. In our Judgment the form of
the objection, above quoted, is not
sufficient to raise this question on
appeal. Moreover, the transcript of
the testimony as compiled by the
court reporter is not sent up as an
exhibit with the record. In the state
ment of the testimony as appended to
the bill of exceptions it is true that
there are questions and answers pur-
porting to be the testimony of John
A. Eggers in which no cross exam
nation appears, but in order to raise
this question the transcript as pre-
pared by the court reporter should
have been sent here as an exhibit so
that we could ourselves determine by
an inspection of the document, whe-
ther it was proprly certified or whe-
ther it included the cross examina-
ton. Under the form of the objection
and for want of the original tran
script of the testimony we are COM
PEELED to disregard this contention of
the plaintiff.
The only remaining assignment OF
error which we deem it material to
consider arose in this wise: In the
application of Mrs Beard for insur-
anCe was question IS as follows