*1 821 to, portions Having determined, case. While interests. so find we opinions Bowling unnecessary this and it arguments Court’s to discuss Grose, supra, might parties pertaining be characterized as to other matters. dicta, primary importance Bowling, judgment appealed order and/or here, recognition persuasive- is its of the hereby reversed, and this cause is interpreting ness of California decisions remanded trial court with directions upon interpretation that statutes State’s proceed vacate same and in a manner jurisdiction. of similar statutes in this consistent expressed with the views herein. review of California decisions All concur. Justices appellate shows that courts of that always upheld State have the termination person’s minors guardianship third “no longer necessary,” under
paragraph guardian 8 of its stat removal (Cal.Stats.1931,
ute it 1580) when § parent
shown that the minors’ natural parents persons fit their care have Willa Jean SMART, Plaintiff in Error, custody, custody and and that such best be for their interests. In this connec George CAIN, Defendant C. Error. tion, (Probate), see West Ann.Cal.Codes § 43282. No. 639, 1580, Guardian, p. In re 84 White’s Supreme Court of Oklahoma. 624, 466, Cal.App.2d 191 P.2d In re and Guardianship, 844, 1, Cal.App.2d Feb. 1972. Case’s 57 135 As questions, P.2d to this and 681. related Rehearing 22, Denied Feb. 1972. Estates, In re notice also Santos’ Cal. Lundberg, P. and In re Cal. P. 156. think deci We these a correct meaning
sions reflect view of the wording identical Tit. State’s 876, supra. find no respondent’s merit in
We
argument applicant ap her abandoned
plication. upon This claim is based her only
statement counsel made after the plain
trial court had made it he would applica in support
hear no evidence
tion respon unless tended to show the
dent-guardian’s “gross immorality.” We interpret
do not as an counsel’s statement applicant’s position
abandonment of she evidence offered to introduce was to,
pertinent supportive of, and appli
cation.
In with foregoing, accord we are opinion that the trial court re- erred
jecting respond- applicant’s offer to show guardianship
ent’s should be- be terminated applicant prop- had become a fit and custody person
er to have the minors’ custody
that such would be best for their
LaMar, Tryon, Sweet, Hensley Field, & by Frank Hensley, Guymon, E. plain- for tiff in error.
Ogden, Ogden Board, & Guymon, for defendant in error.
HODGES, Justice. appeal
This is an from a judgment upon jury verdict personal for in a injury property damage arising out of an intersection automobile accident. The dispositive issue is whether the trial court refusing erred in to admit into evi- dence of the defendant. Defendant was not when case was called for trial. at- Defendant’s torney entered a motion for continuance of grounds the trial on the of defendant’s ab- unable, sence and that he had been after diligence, due to locate the defendant and advise her the matter had been set for subpoena trial. had been for the issued appear witness, defendant as a but was returned sheriff with notation counsel, “not found.” un- Statements plaintiff, contradicted counsel for attempts showed to locate defendant were judge without success. The trial stated bench, “Let the ac- record show cording to information and belief of charge court defendant has a criminal in this pending here and as a result charge county.” of such has left the The the motion for overruled continuance proceeded and the case to trial. case, Upon plain- trial of and after those cases enumerated. Absence from rested, tiff had counsel the defendant one the cases under which a deposition may legislature offered into evidence the used. defendant, by reason as did not restrict absence absence to nonresident of county, they specify any above stated. The of the de- nor did *3 by plaintiff appears fendant had been some It taken limitations. then that a mere nine months before trial and county the was filed absence of a witness from a is suf- in the case with the court clerk. The trial ficient. deposition court refused to the admit into contends, however, Plaintiff that Section evidence, and was the cause submitted ato by is qualified limited or Section 447. jury, resulting in in a favor of verdict the provides: This Section
plaintiff.
deposition
“When a
is offered to
read
be
dep-
The trial court
to
refused
admit the
evidence,
in
appear
it must
to the satis-
osition into
on the erroneous
evidence
faction of
legal
the court that for some
theory
discovery deposition
that it was a
cause the
the
attendance of
witness can-
destroy
if
purpose
allowed it would
the
procured.”
not be
discovery testimony.
of
argues
Plaintiff
mere absence of
admissibility
deposition
The
county
witness from
not sufficient un
a
is
depend
pur
into evidence does not
on the
statute,
requires
this
a
der
but
standard of
pose for which it
taken.
was
Nor is its
through legal
“absence
this
canse.” Under
use limited to
party
the
it.
who initiated
voluntary
a
ab
argues
standard
Where a deposition
taken and
.in
is
filed
is not legal
fallacy
sence
cause. The
the case it
property
the
becomes
of the
interpretation
if
is that
“absence
court
party
and either
is entitled
its use
to
through legal
required
a
cause” was
stand
in the trial
case, subject,
of the
however to
in
deposition
ard before a
could be used
other rules of
and statutory
evidence
re
case,
place quali
the trial of the
it would
a
quirements.
Depositions,
See 26A C.J.S.
fication on the use of a
which
Reid,
92(2),
97. Rucker v.
36 Kan.
§§
legislature
require
prior
in the
the
did not
Kan. P. 992. subpoena (12 process, held such a interpreting similar statute dicial O.S.1961, 390), who and the taken a witness words, voluntarily therefore admissible. In other was from the absent compel at- inability litigant the trial was admissible evidence at legal tendance the witness is the case. deposition. for the admission appears the trial In the case it day trial judge satisfied that on the was legal cause I do not believe that either county. the defendant was absent at- diligence procure failing absence, though not The reason for her is demonstrated tendance of “witness” *4 commendable, related to the case was not by inability subpoena her herself. to trial, col- therefore, of any or element its Bowen, 120 246 P. Bowen v. Kan. not perpetration lusion or of fraud was opinion, the holds majority cited in present. for the It was therefore error deposition the an witness that of absent deposition trial court to refuse to admit the subpoena with a is who could not be served his absence of defendant in evidence as the in the trial the action. The admissible of county day permit- of on the trial deponent case had testified in this divorce deposition of his under ted the use Section Bowen and then to intimacies with Mrs. 433. early train of town on the taken the out to Judgment reversed with directions not day of Bowen does stand the trial. grant trial. a new proposition deposi- the that Mrs. Bowen’s admissible; holds merely tion be it WILLIAMS, DAVISON, and J., V. C. may deposition of that Mr. use the Bowen BARNES, concur. JJ., and JACKSON of deponent upon showing third a party a voluntary this witness to the absence of LAVENDER, IRWIN, Mc- and being subpoenaed. The rule in Kan- avoid INERNEY, JJ., dissent. Oklahoma, was, is, it as in and that sas shown the court that the must first be to McINERNEY, (dissenting). Justice testimony pro- cannot witnesses’ oral be syllabus in I concur in the first and upon the cured trial. Frankhouser opinion portion holding that a dis- 700; Neally, 54 Kan. P. General evi- covery deposition may be admitted as Wilcox, Explosives Co. v. Okl. in trial case when the atten- dence the of a my position is the (1928). P. 266 It procured. cannot dance of the witness be voluntary litigant, resides absence of a who O.S.1961, § 447. in the where the action is tried, satisfy require- this basic fails to However, I in the find no evidence ment. procure the record that defendant cannot depo- dis- (1) the hold in this case that a attendance of the witness whose I would may in trial covery used the sought sition is used. “witness” be be appears the an action if satisfac- the defendant herself! The defendant- legal voluntarily has elected be absent for some witness tion the hearing and cannot be pre-trial the trial after a the attendance of the witness my party to ac- legal setting. procured; trial the (2) notice the In resident view, may “legal cause” purpose statutes not create tion case; voluntary since litigant is to in the absence from assist a trial of testimony may always procured provide litigant her oral purpose not to per- and necessi- testifying with an election her own action without between O.S.1961, use the case by deposition. ty compulsion, son Title 12 as is witnesses; no subpoena (3) for other recognizes those instances when the 433(1)
g25 error excluding dep- was committed in
osition of the defendant in the circum- presented
stances here.
I believe further that the statutes
controlling fully the use of a
adequate an evidentiary rule in- without
jecting fraud or collusion .as added ele-
ments determining admissibility
deposition. respectfully
I dissent.
I am authorized to state that IRWIN LAVENDER, JJ., join the views
expressed herein.
Berry Berry by Berry, Jr., & Howard K. City, Oklahoma for in error. Hunt, Hunt & Thomas Okla- Jake City, for homa defendant in error. BLOCKER, Error, Louis Plaintiff in HODGES, Justice. question presented appeal on con- NATIONAL INSURANCE DISCOUNT COM enforceability cerns pay of a medical PANY, corpo a domestic insurance subrogation clause as an between insured ration, Defendant in Error. and his insurer. No. 43406. Plaintiff, Blocker, seriously Louis was Supreme Court of Oklahoma. injured in a two-car accident. He filed a 1, 1972. Feb. personal injury against action the driver seeking damages car injuries for
sustained. settlement was entered into parties between the which medical included expenses, longer pends. and the action no
Subsequently, plaintiff Blocker filed an against action the Na- tional Discount Company Insurance alleging breach of contract that he carried public liability policy insurance with the provided defendant insurer which pay expenses insurer would medical $2,000.00. insured not in Plain- excess alleged expenses tiff he incurred medical $2,000.00, that insurer had excess but $2,000.00for pay the refused to demand payment of these bills. on
National Discount defended expressly policy ground that the insurance