King v. Westlake
| Decision Date | 13 November 1978 |
| Docket Number | No. 2,No. 78-112,78-112,2 |
| Citation | 572 S.W.2d 841,264 Ark. 555 |
| Parties | Wanda KING, Appellant, v. Harry WESTLAKE, Appellee |
| Court | Arkansas Supreme Court |
Wright, Lindsey & Jennings, Little Rock, for appellant.
Haskins, Eubanks & Wilson by Gary Eubanks, Little Rock, for appellee.
For reversal of a $15,000 judgment in favor of appellee, Harry Westlake, arising out of a rear-end automobile collision, the appellant, Wanda King, who has only $10,000 in liability insurance coverage, makes the two contentions hereinafter discussed.
Her first contention is that the trial court erred in ordering her to permit appellee to present the testimony of his medical witness by means of a videotaped deposition. To support her contention appellant argues that the law does not provide for the recording and presenting of a deposition by videotape and that the presentation of the videotape left the jury with the impression that the witness' testimony was more significant than it really was. We find no merit to either argument:
Ark.Stat.Ann. § 28-104 (Repl.1962) provides:
"The testimony of witnesses is taken in three modes:
First. By affidavit.
Second. By deposition.
Third. By oral examination."
Ark.Stat.Ann. § 28-105 (Repl.1962) provides:
"An affidavit is a written declaration under oath, made without notice to the adverse party."
Ark.Stat.Ann. § 28-106 (Repl.1962) provides:
"A deposition is a written declaration under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine; or upon written interrogatories."
Ark.Stat.Ann. § 28-107 (Repl.1962) provides:
"An oral examination is an examination in the presence of the tribunal which is to decide the fact, or to act upon it, the testimony being heard by the tribunal from the lips of the witness."
The Uniform Rules of Evidence, Ark.Stat.Ann. § 28-1001 (1976 Supp.) provide:
The statute upon which appellant relies is Ark.Stat.Ann. § 28-352 (Repl.1962) which provides:
"Depositions upon oral examination. (a) NOTICE OF EXAMINATION: TIME AND PLACE. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time.
(c) RECORD OF EXAMINATION: OATH: OBJECTIONS. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officer, who shall propound them to the witness and record the answers verbatim."
The record here shows that in addition to permitting the videotape of the medical evidence, appellee took the precaution of also introducing the stenographically transcribed testimony.
Our law, Ark.Stat.Ann. § 28-348 (Repl.1962), as does the law of most other common law jurisdictions, readily recognizes that in matters involving credibility of witnesses it is the better practice for the witnesses to testify orally before the tribunal which is to decide the facts. Since the use of a videotape is the best substitute for permitting testimony being heard by the trial tribunal from the lips of a witness, we are not in a position to say that the trial court abused its discretion in permitting the deposition of the medical witness by videotape instead of having the stenographically transcribed testimony read to the jury. Such action on the part of the trial court is certainly within keeping of the Uniform Rules of Evidence's admonition that the rules of evidence shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of the law of evidence. Other courts have likewise reached the same result, Lucas v. Moss, 498 S.W.2d 280 (Mo.1973).
With respect to appellant's contention that "the obviously costly and elaborate lengths...
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