58 THF: SUPREMF COURT OF TEE STATF, OF MONTANA

MICHAEL McGINLEY, P1aj.nt.iff anc3 Appellant,-vsOLE'S COUNTRY STORES, INC., Defendant and Respondent..

APPEAL FROM: District Court of the Fourth JudicialDistrict, In and for the County of Missoula, The Fonorahle Edward McI,ean, Juclge presidinq. COUNSEL OF RECORD: For Appellant: Christopher Daly, Missoula, Montana Bruce Rarrett, Missoula, Montana For Respondent: Paul C. Meismer; Gar1ington, Imhn & Rohi.nson, ssoula, Montana



### ------------- Suhrnitted on Briefs: Nov. 21, 1989 Decided: January 30, 1990 Filed: 

# r? i i fl',j E .aJustice Diane G. Barz delivered the Opinion of the Court.
This is an appeal from an order of the District Court of the Fourth Judicial District, Missoula County, awarding respondent costs. Subsequent to a jury trial and verdict in favor of respondent on May 8 and 9, 1989, respondent filed a memorandum of costs as set forth below: Clerk's Fee: Appearance Fee $ 40.00 Judgment Fee 25.00 Steno Fee 3.00 $ 68.00 Witness Fees: Laurel Kaysen $ 10.00 Robert Bjornstad 10.00 Mark Olson 10.00 $ 30.00 Deposition Expenses: Michael McGinley $ 282.00 William A. Gromko,M.D. 248.00 $ 530.00 Exhibits: Photographs used as Exhibits at trial, 5 photos at $11.00 each $ 55.00 $ 55.00 TOTAL $ 683.00 Over appellant's objection to certain itemized costs, the District Court on June 8,1989, issued an order awarding respondent all costs set forth above. Appellant appeals from that order. We

reverse. Appellant first contends the District Court erred in awarding respondent a witness fee for the appearance of Mark Olson who sat at counsel table as the defendant during the trial and testified

as the sole stockholder of respondent corporation. Respondentconcedes this issue,thereforewe need not address the substantive matters contained therein and thus reverse the order of the District Court. Secondly, appellant cites as error respondent's recovery of costs for its deposition ofhim. Theprevailingparty may properly
recover the costs of depositions. Section 25-10-201,MCA. However, when thepurpose of thedeposition ismerely to assist the requestingparty in compiling itscase, thecostof thatdeposition is not taxable. Semenza v. Leitzke (Mont. 1988), 754 P.2d 509, 512, 45 St.Rep. 829, 832. The District Court thus erred in the instant case in awarding respondent its cost incurred in deposing appellant. We reverse. Appellant's third specificationof error isthe lower court's award of costs to respondent for pictures taken at the accident site. Appellant contends these are not reasonable and necessary expenses within the meaning of 

### 5 25-10-201. We agree. In this case,theDistrict Courtdeniedrespondent's motionrequestingthat the jury view the premises. The parties instead introduced photographic evidence of the site. It is in the discretion of district courts to permit jurors to view the physical location under consideration. State Highway Commission v. Cooper (1974), 164 Mont. 272, 277, 521 P.2d 190, 192. Thus photographs of the

scene are not a llnecessaryw expense within the meaning of the statute. We reverse. Lastly, appellant contends the District Court erroneously compelled ittopay respondent's costs incurred intranscribingDr.Gromko's audio-visual deposition. Rule 30(h), M.R.Civ.P. is dispositive of this issue: Any party may make at his own expense a simultaneous stenographic, audio record or tape recording of the deposition. Upon his request and at his own expense, any party is entitled to an audio-visual or tape recorded copy of the deposition. On motion the court, forgood cause,may order theparty taking, or who took, a deposition by audio-visual or by tape recording to furnish, at his expense, a transcript of the deposition. Rule 30(h), M.R.Civ.P. Although respondent provided transcriptions for use during viewing of theaudio-visual depositionattrial,such doesnot rise to the level of good cause contemplatedby Rule 30(h). Respondent obtained the transcription for its own use and convenience and as such must bear the cost of the same. We reverse. Reversed.

We concur Justice 

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