King v. Westlake

572 S.W.2d 841, 264 Ark. 555, 1978 Ark. LEXIS 2151
CourtSupreme Court of Arkansas
DecidedNovember 13, 1978
Docket78-112
StatusPublished
Cited by19 cases

This text of 572 S.W.2d 841 (King v. Westlake) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. Westlake, 572 S.W.2d 841, 264 Ark. 555, 1978 Ark. LEXIS 2151 (Ark. 1978).

Opinion

Conley Byrd, Justice.

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:

“Rule 102. Purpose and Construction. — These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.”
“Rule 103. Rulings on Evidence. — (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected, ...”

The statute upon which appellant relies is Ark. Stat. Ann. § 28-352 (Reph 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 someone 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 to which the [appellee] went to record and present the deposition on videotape left the jury with the impression that Dr. Hundley’s testimony was more significant than it really was, ” we are not in a position to second guess the trial court — appellant has not shown the costs involved and did not designate the videotape as a part of the record.

Appellant also contends that the trial court erred in permitting counsel for appellee to ask potential jurors whether they had liability insurance and whether they believed the size of jury verdicts in personal injury cases affects automobile liability insurance premiums.

The record shows that for some time preceding the trial date a number of liability insurance companies had run advertisements in Time, The Wall Street Journal and the Smithsonian Institute magazine aimed at jurors in general to the effect that jurors themselves were affected by the verdicts they rendered in that such verdicts resulted in increased premiums.

On voir dire by appellee’s counsel and in response to questioning a number of potential jurors responded that they had read Time, The Wall Street Journal, or the Smithsonian Institute magazine. All but two of the jurors indicated that they had seen one or more of the advertisements. Thereafter, as abstracted by appellant, the record shows:

“Mr. Eubanks continued:
It is improper for either side to imply or suggest that the defendant does or does not have insurance, and the questions I will now direct to you have nothing to do with whether or not the defendant has insurance. The questions I will ask concern your insurance premiums, not insurance in this case.

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Bluebook (online)
572 S.W.2d 841, 264 Ark. 555, 1978 Ark. LEXIS 2151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-westlake-ark-1978.