Carter v. Wakeman
78 P. 362
Or.
1904
Check Treatment
Mr. Chief J ustice Moore

delivered the opinion.

This is a second appeal by plaintiff from a judgment rendered against her, a statement of the case appearing in the former opinion : Carter v. Wakeman, 42 Or. 147 (70 Pac. 393). Prior to the last trial, defendant’s counsel, desiring to take the depositions of W. P. Hillis and Sarah C. Wakeman, filed affidavits showing the materiality of the testimony expected to be secured from such persons and of their inability to attend as witnesses in consequence of *428the decrepitude of each, and, based thereon, the court made an order permitting their depositions to be taken before a designated person, specifying the notice required and the time within which such evidence might be secured. Thereupon counsel for the respective parties stipulated that the testimony of such persons might be taken by the referee appointed; that at the completion of their examination the deposition was to be signed by the witness giving it; that the referee was to make a typewritten copy thereof and file the same, together with the original, within ten days; and that such copy might be used as evidence on the trial in the same manner as the original could be employed. The depositions, having been taken pursuant to the court’s order and in the manner stipulated, were offered in evidence at the trial, and, over plaintiff’s objection that each was incompetent, irrelevant, and immaterial, and that no foundation for its introduction had been laid, they were received, and exceptions reserved. It is contended by plaintiff’s counsel that, as no proof was made tending to show that the witnesses continued infirm, the court erred in admitting their depositions.

The statute regulating the taking of written declarations under oath, made upon notice to the adverse party, so far as deemed material herein, is as follows: “ The testimony of a witness in this State may be taken by deposition * * (4) when the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend”: B. & C. Comp. § 826. “ If a deposition be taken under subdivision * * 4 of section 826, before the same can be used, proof shall be made that the witness * * still continues * * infirm”: B. &C. Comp. § 840. The bill of exceptions shows that no compliance with the provisions of the latter section was attempted. It is insisted by defendant’s counsel, however, that'the depositions were admissible in evidence on the grounds: (1) That they were practically secured pursu*429ant to a stipulation; (2) it is to be presumed that the reason assigned for talcing them, when used so soon after they were filed, continues, unless the contrary is shown ; (3) the evidence contained in each was only cumulative, and therefore not prejudicial; and (4) if their admission was improper, the error was harmless and should be disregarded. '

1. Considering the legal principles last presented in the order stated, the rule is universal that a party can waive any statutory provision that inures to his benefit, unless his agreement to relinquish a known right violates the rules of public policy. Thus, if a party by stipulation expressly waives all objections to the manner of taking a deposition, reserving only questions of the relevancy, materiality, and competency of the testimony, he thereby abandons every right to which he is entitled, except such as are specially excepted: Ex parte Kindt, 32 Or. 474 (52 Pac. 187). In the case at bar the only departure from a strict performance of the requirements of the statute consented to by the defendant consists in the admission of a typewritten copy of the testimony instead of the original. This was not an express waiver of the right to insist on making the necessary proof of the' continuance of the witnesses’ infirmity.

2. Though the statute provides that a thing once proved to exist continues as long as is usual with things of that nature (B. & C. Comp. § 788, subd. 33), we do not think the deduction which the law expressly directs to be made from particular facts can be invoked to overcome the express provisions of the statute, for, if this were so, it would only be necessary in the first instance to make a showing so as to secure the taking of a deposition, thereby imposing on the adverse party the duty of overcoming the presumption by direct evidence.

*4303. If it be assumed that the depositions only corroborated the testimony introduced at the trial by defendant, it is impossible to determine what degree of importance the jury attached to such evidence, for the triers of the fact may have considered the written declarations under oath, made in pursuance of notice to the adverse party, sufficient to create a preponderance, and based their verdict on that conclusion. When it is manifest that an error has been committed, prejudice will be presumed, unless it affirmatively appears from an inspection of the record that no prejudice could have resulted therefrom: Inverarity v. Stowell, 10 Or. 261; Du Bois v. Perkins, 21 Or. 189 (27 Pac. 1044); Nickum v. Gaston, 24 Or. 380 (33 Pac. 671, 35 Pac. 31); Carney v. Duniway, 35 Or. 131 (57 Pac. 192, 58 Pac. 105).

The court undoubtedly admitted the evidence so objected to on the assumption that the agreement of the parties waived the performance of the statute requiring proof to be made that the witnesses still continued to be infirm before their depositions could be used ; blit, believing that the stipulation was not sufficient for that purpose, the judgment is reversed and a new trial ordered. •

Reversed.