The opinion
TONGUE, J.,
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 “[e]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 OKS 41.900 (8) unless it is shown that such testi *31 mony is not unavailable because of “procurement or instigation of tbe 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: ¿É* * * *
“ (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 the same matter.” (Emphasis added)
Ordinarily, one who offers evidence under the “former testimony” exception to the hearsay rule has the burden to establish that the person who gave such testimony is “unavailable” within the meaning of that exception. 5 Wigmore on Evidence (3d ed 1940) 189, §1414(1).
The question to be decided in this case, however, is the inore fundamental question whether the legislature, in using the word “witness” in ORS 41.900 (8), *32 intended to extend the application of this statute to the parties to a case who also testified at a former trial or whether the legislature intended to limit the application of the statute to the testimony of “witnesses,” as distinct from “parties.”
In order to properly decide this question it is necessary to consider the reason for this exception to the general rule excluding hearsay evidence. In State ex rel Gladden v. Lonergan, 201 Or 168 , 182, 269 P2d 491 (1954), we said that:
“* * * [T]he use of depositions and former testimony is conditioned upon the necessity for such use. The rule of admissibility and the conditions thereof are stated by Professor Wigmore in 5 Wig-more, Evidence 3d ed 148, § 1402, as follows:
“ 'The general principle upon which depositions and former testimony should be resorted to is the simple principle of necessity, — i.e., the absence of any other means of utilizing the witness’ knowledge. * * * The only inquiry, then, need be: Is her testimony in court unavailable V ”
And, at 183 (after quoting what is now ORS 41.900(8)):
“These statutes are also in harmony with the rules announced by Professor Wigmore, supra. Admissibility depends upon necessity; that is upon the unavailability of the witness.” (Emphasis added)
To the same effect, see State v. Walton, 53 Or 557, 563-65 , 99 P 431 , 101 P 389 (1909), and Re Rights to Waters of Silvies River, 115 Or 27, 64 , 237 P 322 (1925).
The only reason for the admission of testimony given at a former trial by a witness who is “out of the state” at a subsequent trial is that there is a necessity for the admission of such testimony because such a witness is unavailable in the sense that the party desiring his testimony cannot subpoena the witness for *33 appearance on the subsequent trial. Thus, as held by this court in Hansen-Rynning v. Oregon-Wash. Etc. Co., 105 Or 67, 75 , 209 P 462 (1933), in discussing what is now ORS 41.900 (8):
“It is evident from the language of the statute that in order to promote justice, the legislature intended to provide a means whereby the benefit of the testimony of a witness given upon a former trial in the same cause, and between the same parties, should not be lost in cases where otherwise such testimony could not be had, viz., where the witness had died, and therefore his testimony could not be had, or where the witness was out of the state, and therefore beyond the power of the court to compel his attendance upon the trial as a witness, or where a witness was within the state, and therefore his attendance upon the trial could be obtained by subpoena, but on account of his physical or mental disability, was unable to testify, and that in all other cases the testimony of the witness should be given upon the trial, or his deposition be obtained. * * *” (Emphasis added)
See also State v. Walton, supra at 565 , to the same effect.
It is thus obvious that the reason for permitting a party to offer the testimony given at a former trial by one who is outside the state, and thus beyond the pov/er of the court to compel his attendance upon the trial as a witness, has no application where the testimony offered is that of a party. This is because all parties are already subject to the jurisdiction of the court by the time of trial.
For these reasons, we should hold that when the legislature, in enacting ORS 41.900 (8), used the word “witness,” it intended by the use of that term to limit this exception to testimony given at former trials by *34 persons who are unavailable to testify as witnesses at the subsequent trial and that the legislature did not intend to extend that exception to testimony given at former trials by persons who are parties at the subsequent trial.
Plaintiff has not called our attention to any cases holding to the contrary and we have found no Oregon cases to the contrary. Some courts in other states, however, have discussed this problem. It is true that Goodman v. Wineland and Wife, 61 Md 449, 455-56 (1883), and Laurel Printing & Publishing Co. v. James, 29 Del 185, 97 A 601, 603 (Super Ct 1916), appear to support the view taken by the majority on this subject. Some other courts, however, appear to support the interpretation of such statutes as set forth in this opinion. Thus, in Crumm v. J. P. Allen & Co., 11 Ga App 203, 75 SE 108, 109 (1912), the court held that:
“* * * The whole purpose of the statute was to enable a party to obtain the benefit of the testimony on a former trial of an absent witness, inaccessible to the court, without the consent or procurement of the party. * * * The statute means that the witness whose testimony is sought is inaccessible, both to the party desiring his testimony and to the court. Certainly it could not be said that a party could ever be inaccessible to himself. He is presumed to know when his case will be called for trial; and it is his duty to be present if he desires to offer himself as a witness, or to testify by depositions. in support of Ms claim.” (Emphasis added)
To this same effect, it was held in Hubbard v. Schofield, 97 W Va 453, 125 SE 221, 223 (1924), that:
“We have found no case or any authority for the proposition that a party to a suit still living may in his absence from the trial, introduce the testimony given by him on a former trial of the same ease. If *35 living he should be present or take his deposition on notice to the other party as provided by statute. It may be said that there is no very potential reason why testimony given on a former trial should not be read as well as the deposition of the witness. The answer is, that such is not the well established rule of evidence, and as on the second trial new issues may be presented and other questions arise, making it desirable, if not necessary, for the party against whom it is offered to have the witness present to be examined and cross-examined on the questions presented.” (Emphasis added)
This result is also consistent with the view of modem authorities that the “former testimony” exception to the hearsay rule should extend only to testimony that is unavailable. See McCormick on Evidence (2d ed 1972) 608-09, 617, 253, 255; 2 Jones on Evidence (6th ed 1972) 231, 235, §§ 9.23, 9.24; Uniform Rules of Evidence, Rule 63 (3) (b); Model Code of Evidence, Buie 511; Federal Buies of Evidence, Buie 804 (a), (b) (1).
This does not mean, of course, that testimony given on former trials by persons who are parties at a subsequent trial cannot be offered under some other exception to the hearsay rule or for the purpose of impeachment or under some other statute, provided, of course, that the requirements of such a rule or statute are satisfied. ② No such contention, however, has been *36 made by the plaintiff in this case. Instead, plaintiff has chosen to rely solely on the provision of OES 41.900 (8).
For these reasons, and upon these grounds, I would hold that the trial court did not err in sustaining defendants’ objection to the testimony of Mrs. Bogers, one of the plaintiffs, given at a former trial of this case, when offered as testimony in this ease under OBS 41.900 (8).
McAllister, J., joins in this specially concurring opinion.
State v. Tauscher, 227 Or 1, 10 , 360 P2d 764 , 88 ALR2d 674 (1961).
For example, testimony given at a former trial and transcribed by an official court reporter has been considered to be substantially the same as a deposition. Beard v. Royal Neighbors of America, 60 Or 41, 44-45 , 118 P 171 (1911); Obermeier v. Mortgage Co. Holland-America, 111 Or 14, 22-23 , 224 P 1089 (1924); 5 Wigmore on Evidence (3d ed 1940) 146, § 140. One who offers a deposition for use on trial, however, has the burden to make a showing sufficient to satisfy the requirements of ORS 45.250. ORS 45.250 (2) (e) makes provision for “exceptional circumstances * * * in *36 the interests of justice.” This could well include a showing of a “valid and substantial reason” why a party cannot attend a trial. In such an event, however, considerable discretion is vested in the trial judge in determining the sufficiency of the showing. State v. McDonald, 55 Or 419, 434-35 , 103 P 512 , 104 P 967 , 106 P 444 (1909).