Crump v. Bank of Toccoa
| Decision Date | 17 May 1930 |
| Docket Number | 19957. |
| Citation | 153 S.E. 531,41 Ga.App. 505 |
| Parties | CRUMP v. BANK OF TOCCOA. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Bank record of depositor's account held admissible to show account on proof by cashier that it contained original entries by persons under duty to make entries in regular course of business; bank record showing customer's account held admissible without examining teller or other employee actually transacting business; leaves from loose-leaf ledger showing customer's account with bank may be introduced in evidence on same basis as books of account; bank record showing customer's account held not rendered inadmissible because relating to cash transactions; books of bank are admissible as books of original entries, though deposits and withdrawals were evidenced by deposit slips and checks, where same were entered in ordinary course of business (Civ. Code 1910, § 5769).
In a suit by a customer against a bank to recover an alleged balance of money deposited subject to check through a period of several years, to which the defendant filed a plea denying the correctness of some of the items and averring that the entire sum deposited had been paid out on checks drawn by the plaintiff, a book of the defendant bank containing the account with the plaintiff customer was admissible in evidence in behalf of the defendant, upon proof by the cashier that the book tendered was the book of original entries, kept by persons whose duty it was to record, and who did record, the entries therein in the regular course of business, it further appearing on inspection by the court that the book was free from suspicion of fraud, and other customers having testified that the bank usually kept correct books.
(a) It was not necessary to the introduction of such book that the teller or other employee who actually transacted the business should be called and examined as a witness.
(b) Other objections to the introduction of the book examined and held without merit.
Secondary evidence of checks drawn by depositor and paid by bank held properly admitted, where there was sufficient evidence of loss or destruction of originals; secondary evidence held properly admitted without service of notice to produce which would have been useless.
The court did not err in admitting secondary evidence of checks claimed to have been drawn by the plaintiff and paid by the defendant, there being sufficient evidence of the loss or destruction of the originals; and this is true, although the defendant had failed to serve a notice to produce upon the plaintiff, it appearing that such a notice would have been useless or ineffectual.
Answer that paragraph of petition "is denied as stated" is not so equivocal as to admit allegations of paragraph.
The answer contained no admissions to conclude the defendant upon the question of liability.
The hearing before the auditor and the trial in the superior court were both free from error, and, the verdict found for the defendant being authorized by the evidence, the court did not err in refusing a new trial.
Error from Superior Court, Stephens County; I. H. Sutton, Judge.
Suit by Mrs. F. K. Crump against the Bank of Toccoa. Judgment for defendant, plaintiff's motion for new trial was overruled, and plaintiff brings error.
Affirmed.
J. C Edwards and H. E. Edwards, both of Clarkesville, for plaintiff in error.
Fermor Barrett, of Toccoa, for defendant in error.
Mrs. F K. Crump brought suit against Bank of Toccoa to recover $10,798.64 alleged to have been deposited in the bank in various amounts during a period of several years. The defendant filed a plea denying the correctness of the account as pleaded by the plaintiff, but admitting certain deposits which it claimed to have paid on checks drawn by the plaintiff. The case was referred to an auditor, whose report was favorable to the defendant. To this report the plaintiff filed exceptions of law, which the court overruled, and exceptions of fact upon which there was an adverse finding by the jury. The plaintiff made a motion for a new trial, which the court refused, after which the plaintiff brought the case to this court.
Numerous questions are raised by the record, and all of them have been considered; but it is deemed necessary to deal expressly or specifically only with the points referred to in the following opinion, since the rulings we shall make upon these will substantially cover the entire case.
1. A book of the defendant bank, containing the account with the plaintiff customer, was admissible in evidence in behalf of the defendant, on proof by the cashier that the book tendered was the book of original entries, kept by persons whose duty it was to record, and who did record, the entries therein in the regular course of business, it further appearing on inspection by the court that the book was free from suspicion of fraud, and other customers having testified that the bank usually kept correct books.
It was not necessary to the introduction of such book that the teller or other employee who actually transacted the business should be called and examined as a witness. Bower v Smith, 8 Ga. 74 (2); Fielder v. Collier, 13 Ga 496 (2); Bailey v. Barnelly, 23 Ga. 582 (4); Schaefer v. Georgia Railroad, 66 Ga. 39 (2); Dunlap v. Hooper, 66 Ga. 211; Continental National Bank v. First Nat. Bank, 108 Tenn. 374, 68 S.W. 497; Furness v. Cope, 5 Bing. 114, 15 E. C. L. 498, 130 Reprint 1004; 22 C.J. 868, 885; 9 Am. & Eng. Enc. Law (2d Ed.) 925. The present case is distinguished by its facts from the case of Hollis v. State, 152 Ga. 182(2, 3), 108 S.E. 783.
What was introduced was not really a book in the ordinary sense, but consisted of detachable sheets taken from a "loose-leaf ledger" and contained a record of the account between the parties. These documents, however, will be treated as a book, and, for convenience herein, will be called a book, since such leaves or sheets may be removed from the ledger containing them and introduced in evidence upon the same footing and under the same principles as are applicable to the introduction of books of account, where the proper foundation for such evidence is otherwise laid. It is immaterial whether the original entries of the account be made in a book or on separate sheets of paper; the requirement as to this matter being that the document shall comprise an account of the dealings between the parties and shall be primary and original. Taylor v. Tucker, 1 Ga. 231 (2); Bush v. Fourcher, 3 Ga.App. 43 (3), 59 S.E. 459; 22 C.J. 870, and cases cited.
That books so tendered in evidence are those of a banker and not of a merchant or tradesman, and relate to cash transactions rather than to the sale of goods or the performance of services, would not render the books inadmissible under the shop-book rule, although in other lines of business than banking, where a cash item is so large or unusual that a receipt or some written evidence would likely be required from the recipient by the...
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