The opinion
NYE, Justice
(dissenting).
I respectfully dissent. The majority of this Court by affirming the judgment of the trial court had to approve the hearsay testimony of defendant F. M. Reising. The facts and the rules relative to the admissibility of the hearsay testimony of a party from a former trial have been fairly set out in the majority opinion of this Court. However, I believe that such evidence did not qualify for admissibility under the rules set down by the Supreme Court in White v. Natural Gas Pipeline Company of America, 444 S.W.2d 298 at 302 (Tex.Sup.1969) for at least three reasons. First, the plaintiff was denied the opportunity to cross-examine Reising concerning his champertous agreements with the water district. This was where Reising agreed with the water district to do certain things in exchange for a share of a subject matter and this fact was not discovered at the time the witness gave his former testimony. Second, the witness was not “unavailable” to testify as the rule has been defined by the Supreme Court and by other judicial decisions in this State. Third, there was no effort to take the witness’ deposition before the trial.
Reising was a party defendant in the law suit. At the time of the present trial he was considered only a nominal party since he and the plaintiff had settled their damage claims against each other. Reising had testified in two prior trials, one of which he was, then, the sole defendant. During the last trial in 1966 he testified as to certain matters respecting his purchase of the land in question. At the end of his testimony he was excused from the trial. Four days later on the final day of the former trial, written records of the champertous dealings by Reising were found and introduced into evidence. It was undisputed that the plaintiff did not know about these dealings at the time Reising was testifying. There had been no cross-examination of Reising or inquiry of Reising respecting these covert arrangements. He did not volunteer such admission. His credibility as to good faith was not in issue then in the same light as it was in this trial.
The rule is, that statements made in evidence upon a previous proceeding may be received upon a subsequent trial as evidence of the truth of such statements where the witness is unavailable, provided the party against whom the evidence is now offered had the opportunity to cross-examine the witness at the former trial upon the same issue as that upon which the evidence is now offered. (emphasis supplied) McCormick and Ray on Evidence, § 942, p. 720; Hafer v. Prashner, 413 S.W.2d 759 (Tex.Civ.App.—Corpus Christi 1967) and authorities cited therein. The hearsay evidence relied upon in this trial, was offered to show among other things that Reising had made “good faith” improvements on the land following his purchase. He testified that he had paid the consideration called for in the deed. There was evidence from other witnesses that the amount Reis-ing had paid was extremely low. There was no opportunity to cross-examine Reis-ing relative to the champertous arrangements he had made with the water district relative to such purchase. The evidence was offered by appellees undisputedly to prove at least in part, Special Issue No. 17 inquiring whether or not Reising had acted in good faith in purchasing the land in question, to which the jury answered: “Yes”.
*439 It was undisputed that Reising was a resident of Edinburg the county where the case was tried. It was also undisputed that his deposition had never been taken during the 22 years this cause has been pending. Appellees admit that his testimony was vital and very material to their defense. It was undisputed that defendant Reising had gone to Oklahoma on a vacation and would return on October 20. The defendants issued a subpoena for Reising on October 3 and four days later learned of his absence because of his vacation. On October 13, the day trial commenced, appellees presented their motion for continuance because Reising was absent. This was overruled by the court. Later the trial court admitted Reising’s testimony over appellant’s objection.
The Court in Morris v. Davis, 292 S.W. 574 (Tex.Civ.App.—Austin 1927, wr. ref.) discussed the various rules that had been formulated by judicial decision based upon the common law. One such rule was that a party does not have the right to prove what a particular witness testified to on a former trial of the case merely because that witness has gone to and resides in another state. He must show in addition, that he cannot procure the evidence of the absent witness by deposition or otherwise. The Court, in discussing the common law rule and testing the basis for its admissibility said: “It is clear beyond dispute that the purpose of the rule requiring the ‘whereabouts’ of the witness to be unknown, before his former testimony is admissible, was to require the taking of his deposition when his ‘whereabouts’ is known, even though his residence be beyond the limits of the state. Or, as said by Judge Key, ‘conditions which render it reasonably certain that he cannot procure the evidence of the absent witness by deposition or otherwise’ should be shown by the party offering it.”
The rule relative to the unavailability of a witness to testify where the excuse is that he is “beyond the jurisdiction of the court” must be interpreted to mean that his unavailability from the state is more than temporary. This is true because all of the excuses that are set forth in the rule are based upon a rather permanent condition: such as 1) whereabouts are unknown and that a diligent search has been made to ascertain his whereabouts; 2) that he has been kept away from the trial by an adverse party; 3) physically unable to testify; 4) insane; 5) dead; and 6) finally beyond the jurisdiction of the court. The Supreme Court in White v. Natural Gas Pipeline Company of America, supra, said each and every one of these requirements is essential in establishing the proper predicate for the admissibility of the evidence. The exercise of discretion by the trial court, is limited by a determination of the sufficiency of the factual predicate in the situation claimed to exist. Houston Fire & Casualty Insurance Company v. Brittian, 402 S.W.2d 509 (Tex.Sup.1966). There was no evidence before the trial court that the witness’ absence beyond the jurisdiction of the court was anything other than temporary. There was no evidence that there had been any attempt to secure the deposition testimony of the absent witness. I would hold the trial court abused its discretion in this respect.
The Supreme Court in the Brittian case, supra, in discussing the Morris v. Davis case, (writ refused) stated: “ * * * there was disagreement among members of the court but none questioned the soundness of the rule in Lone Star Gas; Morris v. Davis, * * * ” (Emphasis supplied.) and citing other authorities. The court in the White case, supra, in holding that the evidence admitted was error, stated that the deposition of the witness could have been taken but wasn’t.
The trial court in this case had only to wait approximately one week for the return of the witness to make his testimony available in person and subject to cross-examination. The appellee and even the defendant Reising (the absent witness) knew of the trial setting but appellee made no effort to take Reising’s deposition. This, *440 of itself, precludes the use of the former testimony. Stohn v. Bryant, 283 S.W.2d 299 (Tex.Civ.App.—Dallas 1955, ref. n. r. e.); Morris v. Davis, supra. Reising’s testimony taken from two other trials was clearly secondary evidence. There was no matter of necessity existing in this trial that would compel the trial court to authorize the use of this evidence by appellee.
I would hold that the admission of such testimony under the circumstances of this case was calculated to and probably did cause the rendition of an improper judgment. Houston Fire & Casualty Insurance Company v. Brittian, supra; White v. Natural Gas Pipeline Company of America, supra; and Rule 434, T.R.C.P. The judgment should be reversed and the cause remanded.