The opinion
HALLEY, Chief Justice
(dissenting) :
In my opinion, the majority view in this case is incorrect. The decision of the majority contains the following statement:
“We have carefully examined Mr. Hart’s deposition, and his testimony at the trial, including his explanation for the conflicts between the two, and we cannot say that the trial court erred in accepting the latter as the truth. * * * we have weighed all of the evidence pertinent to the issue of whether or not Kenneth Randol was driving the Corvair (at the time of the collision) with its owner’s permission, and cannot say that the trial court’s findings and conclusions relative thereto were clearly against the weight of the evidence.”
The pertinent portion of plaintiff’s deposition and his testimony at the trial upon which the above quotation must be premised is as follows:
(From plaintiff’s deposition, pages 14, 15 and 18.)
“Q. Now, what about other persons driving your car? Do you permit *427 it as a rule or do you not permit it?
A. It’s a specific rule in my family that no one is to drive an automobile except the family. In other words, if Charlotte has the car, she has been specifically instructed that no one is to drive that automobile.
Q. That would be in keeping with the routine of your life?
A. Yes, but what I am stating is that Charlotte has strict instructions that no one was to drive that automobile except Charlotte.
Q. So to your knowledge, Dean, has Charlotte let other children drive any of the cars that she has driven of yours?
A. No, that is as far as I know, the first time she ever let them drive it. She violated a rule twice that morning- * * * »
Then at the trial, in connection with the above, plaintiff testified as follows:
“Q. State whether or not Mr. Hart, that your little daughter had permission to let others drive the automobile ?
A. She did.
Q. Now, you made a contrary statement in a deposition about that matter. What is your explanation of that?
A. * * * After I got home, I got to thinking about it; and so I first went in to see Charlotte and asked her if I ever told her that no one should drive the car. She said no, on the other hand that I said they could. I argued with her for a while and then I called my wife in, without divulging to her what the purpose of it was, and asked her the same question. She said you’re just mistaken, you’ve never told her; and on the other hand you said she could. And after thinking about it, I was totally mistaken when I gave the deposition. I did give the child permission.
Q. To let anyone with her drive the automobile that she desired?
A. Yes.
Based upon the above conflicting testimony, the trial court held that the car was-being driven by the Randol boy at the time of the accident with the implied consent o£ the plaintiff, and the majority opinion, as is mentioned above, approved the action of the trial court. i
This case is controlled by our decision in Moral Insurance Co. v. Steves, 208 Okl. 529 , 257 P.2d 836 , wherein we made the following statement:
“When instituted in aid of execution as in this case, after an execution’s return: 'No property found’, garnishment proceedings are in the nature of an action in equity, and equitable principles apply.” i
The Moral Insurance case, supra, and the case at bar were both cases where trial by jury was waived, and they both covered garnishment proceedings after executions were returned with no property being found. If we are to apply equitable principles to proceedings of this type, and we should apply them, this court has the duty of reviewing the entire record of the case and if the judgment of the trial court is contrary to the evidence or contrary to the law, to reverse the case with directions to the trial court to enter the judgment which should have been entered. See Schaefer v. J. G. Stobaugh Supply Co., Okl., 285 P.2d 380 ; Brown v. Bivings, Okl., 277 P.2d 671 , and Catlett v. Jordan, 206 Okl. 473 , 244 P.2d 564 .
In my review of the testimony of this case, I cannot escape the conclusion that plaintiff’s testimony given by deposition, within a short period of time after the occurrence of the accident, is entitled to greater probative value than his testimony given at the trial. It is incredible to me, that plaintiff could be mistaken in so important a matter.
His explanation of the reason for the change in the testimony as between the deposition and the trial testimony to me is not *428 convincing. It partakes too much of hindsight to be entitled to any weight.
I would reverse the trial court on the grounds that plaintiff failed to prove by clear, and cogent evidence that the Randol boy was driving the automobile with plaintiff’s permission, either express or implied.
For the reasons set out above, I respectfully dissent.