Cotton v. John W. Eshelman & Sons, Inc.

• Decision Date: 23 January 1976
• Docket Number: No. 51570,No. 3,51570,3
• Citation: 223 S.E.2d 757,137 Ga.App. 360
• Parties: T. E. COTTON et al. v. JOHN W. ESHELMAN & SONS, INC
• Court: Georgia Court of Appeals

Page 757

223 S.E.2d 757

137 Ga.App. 360

T. E. COTTON et al. v. JOHN W. ESHELMAN & SONS, INC.

No. 51570.

Court of Appeals of Georgia, Division No. 3.

Jan. 23, 1976.

Cook & Palmour, Bobby Lee Cook, Summerville, Neely & Player, Edgar A. Neely, III, Adam S. Skorecki, Atlanta, for appellants.

Kenyon, Hulsey & Oliver, Julius M. Hulsey, J. D. Smith, Gainesville, for appellee.

WEBB, Judge.

Eshelman & Sons sued the Cottons, husband and wife, for $58,670.75 plus accrued interest, alleged to be the amount due on an open account for the purchase of feed and other supplies. In addition the complaint alleged that a conveyance of certain real property from Thomas E. to Gloria P. Cotton was effectuated for the purpose of defrauding the company and delaying the collection of the indebtedness, and prayed that the conveyance be declared void and the judgment be declared a lien on the property. Mrs. Cotton's motion for directed verdict made at the close of the evidence was denied and the jury returned a verdict in favor of Eshelman. The Cottons appeal.

1. The appellants maintain that certain invoices, ledger cards and other documents evidencing the open account of Thomas E. Cotton, d/b/a Cotton Patch Poultry Farm, or Grayson Egg Company, were improperly admitted in evidence as business records under Code Ann. § 38-711 for the purpose of showing goods delivered, because no witness testified from personal knowledge in regard to posting to amounts shown thereon or the actual delivery of any goods to the party charged.

The business records statute provides as follows: 'Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event shall be admissible in evidence in proof of said 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. 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. The term 'business' shall include every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not. This section shall be liberally interpreted and applied.' Code Ann. § 38-711. (Emphasis supplied.)

Appellants' contention that the invoice and ledgar cards were inadmissible as business records because a proper foundation was not laid under the above quoted provision overlooks the italicized portion which clearly states that lack of personal knowledge may affect only the weight given the evidence, not its admissibility. There are numerous decisions of this court holding that records made in the regular course of business are admissible regardless of lack of personal knowledge on the part of the entrant or maker. See, e.g., Allstate Insurance Co. v. Buck, 96 Ga.App. 376, 378, 100 S.E.2d 142 and cits.; Welborn v. State, 132 Ga.App. 207, 209(4), 207 S.E.2d 688.

' The purpose of Code Ann. § 38-711 is to allow the determination of records without the necessity of producing all the various clerical personnel who made the entries.' Timothy McCarthy Construction Co. v. Southern Detectives, Inc., 125 Ga.App. 205, 206, 186 S.E.2d 895, 896; Dowling v. Jones-Logan Co., Inc., 123 Ga.App. 380, 382, 181 S.E.2d 75. Such records are admissible upon the testimony of a witness that they were made, kept and maintained in the regular course of business under his supervision, direction and control, even if the witness did not personally keep the the records or make particular entries therein. Robinson v. Reward Ceramic Color Mfg. Inc., 120 Ga.App. 380, 384(6), 170 S.E.2d 724.

Marshall Jenkins testified that he had been the accountant for Eshelman & Sons for 17 years; that he was familiar with the Cotton account; that it was his responsibility to keep up with the accounts of all of Eshelman's customers; and that he was familiar with the procedure by which entries were posted to an individual customer's account. On cross examination he testified in greater detail as to his knowledge of the delivery and accounting procedures of the business. This testimony, as well as that of Eshelman & Sons' general manager, R. D. Benner, established that the company's business practices were to make account entries either on ledger cards or by computer within a reasonable time after a particular transaction was completed; and that these entries were furnished in the regular course of business by those employees who had actual knowledge of the relevant facts, including delivery.

This testimony was sufficient to lay a proper foundation for the admissibility of the ledger cards and invoices of the Cotton open account. After being properly admitted into evidence, the weight and credit to be attached to these records was a matter for determination by the jury.

2. The itemizations and summaries of the Cotton account prepared by Mr. Jenkins were also properly admitted in evidence. These summaries were not introduced as business records under Code Ann. § 38-711, but instead were offered solely for the purpose of summarizing voluminous records, which were present in court and available for inspection.

'When pertinent and essential facts can be ascertained only by an examination of a large number of entries in books of account, an auditor or an expert accountant who has made an examination and analysis of the books and figures may testify as a witness and give summarized statements of what the books show as a result of his investigation, provided the books themselves are accessible to the court and the parties. Bitting v. State, 165 Ga. 55(3), 139 S.E. 877.' Bible v. Somers Construction Co., 197 Ga. 761(2), 30 S.E.2d 623; Hutcheson v. American Machine & Foundry Co., 129 Ga.App. 602, 603, 200 S.E.2d 371 and cits.

3. The Cottons contend that the trial court erred in admitting into evidence certain computer printouts showing transactions that made up a portion of their open account. They concede in their brief that 'it was clear that Mr. Jenkins generally oversaw the accounting practices of the company,' but argue that he was not familiar enough with the computer program to lay the necessary foundation as business records under Code Ann. § 38-711.

Mr. Jenkins' testimony established that the computer printouts were a part of a computer account system implemented by the company in 1972 to replace the earlier posting system utilizing ledger cards. Therefore the business records introduced to prove the indebtedness of Thomas E Cotton on the open account consisted of both ledger cards with supporting documents and computer printouts. Jenkins testified that both the cards and the printouts were used, in turn, in the regular course of business; that he was responsible for maintaining and certifying accounts and records of accounts under both systems; and that he supervised the maintenance of all the company's records and would certify their accuracy.

While the question of proof of business records stored on tape on electronic computing equipment has not previously been considered in this state, those jurisdictions which have dealt with the issue have generally held that the proper foundation to be laid is the same as that for business records of any other type or description. See Merrick v. U.S. Rubber Co., 7 Ariz.App. 433, 440 P.2d 314 (1968); Rogers v. Frank Lyon Co., 253 Ark. 856, 489 S.W.2d 506 (1973); King v. State, 222 So.2d 393 (Miss.1969); Union Electric Co. v. Mansion House Center North Redevelopment Co., 494 S.W.2d 309 (Mo.1973); Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965); State v. Springer, 283 N.C. 627, 197 S.E.2d 530 (1973); Railroad Commission of Texas v. Southern Pacific Co., 468 S.W.2d 125 (Tex.Civ.App., 1971); and United States v. De Georgia, 420 F.2d 889 (9th Cir. 1969). See also, Annotation, 11 A.L.R.3d 1377.

Clearly the requirements imposed by the business records statutes of the various jurisdictions will vary depending upon the act adopted by the particular state. See generally, Green, Georgia Law of Evidence, § 312, p. 613. The Georgia statute does not prescribe the form or...