Childs v. Logan Motor Co., 38662

• Citation: 120 S.E.2d 138,103 Ga.App. 633
• Decision Date: 21 April 1961
• Docket Number: No. 38662,3,2,Nos. 1,38662,s. 1
• Parties: Ty CHILDS et al. v. LOGAN MOTOR COMPANY
• Court: Georgia Court of Appeals

Page 138

120 S.E.2d 138

103 Ga.App. 633

Ty CHILDS et al. v. LOGAN MOTOR COMPANY.

No. 38662.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 21, 1961.

Rehearing Denied May 9, 1961.

Syllabus by the Court.

1. A document labeled 'Manufacturer's Statement of Origin to a Motor Vehicle,' mailed by the manufacturer to the dealer, is a business record of the dealer and is admissible under Code Ann. § 38-711 where an employee of the dealer identified it as having been received in the normal course of business.

2. In a trover action an erroneous charge to the jury on the measure of damages, while harmful to the plaintiff, was not injurious to the defendant, who cannot complain where the evidence authorized the verdict.

3. The motion for new trial on the general grounds was properly overruled.

The plaintiff brought this action in trover against the defendants alleging that the plaintiff's personal property, a 1958 Ford Fairlane 500 club sedan, was in the possession of the defendants, to which the plaintiff claims title, and that the defendants refused to deliver it to the plaintiff upon demand. The action was instituted on September 15, 1958. The defendants' answer denied title in the plaintiff and denied the value of the property as alleged in the plaintiff's petition as being $3,200.

After the trial, the jury found for the plaintiff in the sum of $1,600. The defendants moved for new trial on the general grounds, which was amended to add the following special grounds:

Ground 1. Because a certain written document entitled, 'Manufacturer's Statement of Origin to a Motor Vehicle,' issued by the Ford Motor Co., certifying that the car described was transferred to the plaintiff, was admitted by the court to the jury. The movants objected to this evidence as soon as it was offered, contending that the plaintiff's witness, who was sales manager of the plaintiff company, did not testify that he was custodian of the records and, therefore, he would not have any knowledge of the records. Further objection was made that the instrument was not signed by anyone, did not give the serial number, nor did it bear the corporate seal.

Ground 2 of the amended motion for the new trial contends that the trial court erred in giving a charge to the jury which advised them that the plaintiff would be entitled to recover the highest market value of the property 'between the date the plaintiff filed its petition and this date.' It is contended that this charge was erroneous and injurious to the defendants in that the testimony of two of the defendants as to the market value of the car was prior to the date the plaintiff filed his petition, and that under such instruction the jury was misled into disregarding the opinion of these witnesses on market value.

The trial court overruled the motion for new trial on all grounds, to which the defendant excepted.

McClure, Ramsay & Struble, C. M. McClure, Toccoa, for plaintiffs in error.

Ellard & Frankum, Stephen D. Frankum, Clarkesville, for defendant in error.

BELL, Judge.

1. The first special ground contends that a certain document was erroneously admitted in evidence over the timely objection of the defendants. The document objected to is captioned, 'Manufacturer's Statement of Origin to a Motor Vehicle.' This document was a certification that the new car described therein was transferred on February 6, 1958, from the Ford Motor Co. to the plaintiff. The document goes on to describe the car as a 1958 Ford Fairlane 500 Tudor, 8-cylinder, with a shipping weight and horsepower designated, and gives the manufacturer's motor vehicle number, which is the same number assigned to the car as charged in the plaintiff's petition. The trial court overruled the objection of the defendants to this evidence, and allowed it to be introduced. It is contended that this erroneously admitted document was harmful to the defendants in that it proved the title as being in the plaintiff. Code Ann. § 38-711, known as the 'Uniform Business Records as Evidence Act,' provides in substance that any writing or record, whether in the form of an entry in a book or otherwise made as a memorandum or record in any act, transaction, occurrence, or event shall be admissible in evidence in proof of such act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. The code section goes on to state that 'All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. * * * This section shall be liberally interpreted and applied.' The defendant urges that this document is a business record of the Ford Motor Co. but not of the plaintiff, a Ford dealer or distributor. With this contention we cannot agree. A document of this type, sent in the ordinary course of business from the seller to the buyer, serving as a memorandum of the transfer of title to personal property, is most assuredly a business record of the recipient and obviously was intended to be kept by him as at least one proof of purchase.

The witness for the plaintiff testified that he had been employed by the plaintiff corporation for eight years, during the past five of which he had been sales manager; that he was familiar with the automobile described in the petition; and, further, that the document was received by the Logan Motor Co. from the Ford Motor Co. in the normal course of its business. This evidence was uncontradicted. This identification renders the document admissible in evidence under Code Ann. § 38-711. It is particularly to be noted that the statute itself provides for a liberal interpretation and application. See the resolution expressing the legislative intent in Ga.L.1958, pp. 542, 543. The weight and credit to be given business records, including the circumstances of making and lack of personal knowledge on the part of the persons responsible therefor, are matters for the consideration of the jury. Allstate Ins. Co. v. Buck, 96 Ga.App. 376, 100 S.E.2d 142. The trial court properly admitted this document into evidence. In any event, there is ample other uncontradicted evidence in the record from which the jury could find, as it did find, that the plaintiff owned the car allegedly converted by the defendant.

2. The second special ground of error assigned in the motion for a new trial takes exception to the following charge to the jury on the measure of damages: 'I charge you, gentlemen of the jury, that the plaintiff would be entitled to recover the highest market value of the property in question between the date the plaintiff filed its petition and this date. The burden is on the plaintiff to establish the market value of the property in question by a preponderance of the evidence.' It is contended that this charge is erroneous and not sound as an abstract principle of law, and that the charge was misleading to the jury in that the testimony of two of the defendants as to the market value of the automobile related to its market value twelve days prior to the date the plaintiff filed the petition but after the defendants had come into the possession of the automobile, and that this charge misled the jury into disregarding their opinion on market value which was proper and should have been considered by the jury. The record reveals that the two defendants testified that they purchased the automobile on September 3, 1958, from the person who was identified elsewhere in the evidence as having stolen it from the plaintiff. One defendant, Loyd Childs, testified that he gave this person a check for a thousand dollars and an older car which had a market value of three or four hundred dollars. This testimony obviously relates to the value of the car on September 3, 1958. He further testified that he expected to make a profit above the price he paid for the car. Mr. Ty Childs, another defendant, testified that he saw the vehicle about fifteen minutes after it was...