Curiel v. Mingo

• Decision Date: 29 June 1979
• Docket Number: No. 12870,12870
• Citation: 597 P.2d 26,100 Idaho 303
• Parties: Olegario G. CURIEL, Plaintiff-Appellant, v. Ronald MINGO, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 26

597 P.2d 26

100 Idaho 303

Olegario G. CURIEL, Plaintiff-Appellant, v. Ronald MINGO, Defendant-Respondent.

No. 12870.

Supreme Court of Idaho.

June 29, 1979.

Michael R. Crabtree, Twin Falls, for plaintiff-appellant.

Michael O. Douglas, Duffin, Douglas & Crowley, Burley, for defendant-respondent.

WALTERS, Justice, Pro Tem.:

The facts of this case, hereinafter recited, have been formulated from the transcripts on appeal, briefs of counsel, and the findings of fact entered by the trial court, inasmuch as this matter is before the Court upon a limited issue and only a portion of the reporter's transcript of the proceedings below has been provided in this appeal pursuant to I.A.R. 17(f).

It appears that in 1975, the defendant-respondent, Ronald Mingo (hereinafter Mingo), entered into an agreement with Murdock Farms, near Winnemucca, Nevada, to harvest and haul a potato crop grown that year on those farms. In order to implement this contract, Mingo hired the plaintiff-appellant Olegario G. Curiel (hereinafter Curiel) by oral agreement to haul the potatoes from the fields as they were harvested by Mingo. Under this oral agreement Mingo was to make advances and payments on behalf of Curiel and then deduct such advances and payments from the total amount earned by Curiel. At the completion of the contract, Mingo disagreed as to the amount of money payable by Mingo to Curiel for the hauling services he had rendered, and Mingo paid nothing to Curiel. When the parties were unable to resolve these differences, Curiel brought suit against Mingo for an accounting and for payment for services rendered.

Following trial of the matter to the court, the trial court found that under the contract for hauling potatoes for Murdock Farms, sublet by Mingo to Curiel, Curiel earned the sum of $3,725.00 before deductions and offsets. The trial court then found that Mingo had made payments for Curiel totaling $3,875.73 and that Mingo was entitled to offset said amount against the sum earned by Curiel, leaving a deficit owed by Curiel to Mingo. Judgment was then entered in favor of Mingo for the overpayment, from which judgment Curiel has appealed.

During the course of the trial Mingo offered evidence concerning the amount of vehicle fuel consumed by Curiel while hauling potatoes for Mingo. Specifically, Mingo offered Exhibit K, a photocopy of what Mingo claimed was a ledger-sheet listing Curiel's fuel. Throughout, Curiel disputed Mingo's accounting and specifically the amounts of fuel which were shown in Exhibit K to be chargeable to him.

Apparently Mingo received the photocopy of the ledger from Murdock Farms' accountant, who apparently had prepared it from statements given him by the company from which Mingo's drivers obtained their fuel. Mingo then incorporated this photocopy of the ledger into his own business records and used it as the basis for computing the amount to be set off against the money he owed Curiel for the hauling services. The appellant represents that the amount of money earned by Mingo's drivers was based upon the weight of potatoes hauled, at a fixed rate per hundredweight. From these gross earnings Mingo deducted fuel and other charges incurred by the drivers during hauling.

When Exhibit K was offered into evidence, Curiel objected on hearsay grounds. The objection was overruled, and the exhibit was admitted. After Findings of Fact and Conclusions of Law were entered, Curiel made a Motion to Amend Findings and Conclusions, at which time he renewed his argument against the admission of Exhibit K into evidence. The motion was denied and Curiel appeals, assigning as error the admission into evidence of Exhibit K.

Appellant argues that Exhibit K did not qualify for admission into evidence under the Business Records as Evidence Act, I.C. § 9-414, and that Exhibit K, a photocopy reproduction of a writing, was not qualified under I.C. § 9-417 and § 9-411 for admission into evidence.

The pertinent section of the Idaho Uniform Business Records as Evidence Act provides as follows:

"A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to the identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission." I.C. § 9-414.

Shortly after the adoption of I.C. § 9-414, this Court noted that by enactment of the Business Records as Evidence Act the legislature intended to broaden the scope of admissibility into evidence of records made in the regular course of business. Henderson v. Allis Chalmers, 65 Idaho 570, 581, 149 P.2d 133, 139 (1944). See also State v. Baldwin, 69 Idaho 459, 208 P.2d 161 (1949); In re Potlatch Forests, 72 Idaho 291, 240 P.2d 242 (1952); John Scowcroft & Sons Co. v. Roselle, 77 Idaho 142, 289 P.2d 621 (1955); Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964); Daniel v. Moss, 93 Idaho 612, 469 P.2d 50 (1970).

It has been noted that necessity and trustworthiness are the fundamental justifications underlying the admissibility of hearsay evidence as an exception to the general rule against the admissibility of such evidence. Bell, Handbook of Evidence for the Idaho Lawyer, 2d Ed. p. 130. The Business Records as Evidence Act sets forth the statutory requirements for the necessity and trustworthiness of such proffered evidence. In Kelson v. Ahlborn, supra, this Court quoted with approval the following from a New Jersey case:

"The basic theory of the uniform law is that records which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence unless the trial court after examining them and hearing the manner of their preparation explained, entertains serious doubt as to whether they are dependable or worthy of confidence. The last clause of the statute (which states) that the books should be accepted 'if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission,' confers considerable discretion upon the trial judge." (Mahoney v. Minsky, 39 N.J. 208) 188 A.2d (161) at 166. 87 Idaho at 529, 530, 393 P.2d at 584.

The Arizona Court has held that the trial judge clearly has wide discretion with regard to admissions in evidence under the Business Records Act. Shore Line Properties, Inc. v. Deer-O-Paints & Chem. Ltd., 24 Ariz.App. 331, 538 P.2d 760 (1975). In Richmond v. Frederick, the California Court held that:

"The section grants to the trial court a wide discretion in determining whether the mode of keeping the books justified their admission. (Citations) A holding of the sufficiency of the evidence as to the foundation will not be disturbed if supported by substantial although conflicting evidence or inferences therefrom." Richmond v. Frederick, 116 Cal.App.2d 541, 253 P.2d 977, 982-983 (1953).

In ruling on a close question regarding the propriety of admitting a federal estate tax return under I.C. § 9-414, we held:

"It was within the district court's discretion under the last clause of I.C. Sec. 9-414 to admit the record. If the question as to the admission of evidence is on the borderline, the ruling of the trial court will not be disturbed. This Court will not disturb a discretionary ruling of a lower court unless the trial court's discretion was clearly abused." Daniel v. Moss, 93 Idaho 612, 613-614, 469 P.2d 50, 51-52 (1970).

Here, at the time Mingo offered Exhibit K in evidence, Curiel did not object upon the ground that, as a photocopy, foundation for its admissibility was not made pursuant to I.C. § 9-411 and I.C. § 9-417. This point was apparently first raised by the appellant at the hearing on his Motion to Amend the Findings. To gauge the exercise of discretion of the trial court in admitting Exhibit K in evidence, we look to the rationale therefor, articulated by the Court during the hearing of appellant's Motion to Amend Findings of Fact and Conclusions of Law. There the trial court stated:

"THE COURT: All right, fine. Mr. Crabtree, one problem we have is (sic) Findings and Conclusions is that whenever a court acts as a jury in a court trial, the court has to be the finder of fact and as far as the Defendant's Exhibit K is concerned, I did admit that as a business record and, although, I didn't go through all the specifics of each requirement in the Idaho Code, as I recall the testimony, this is a specific document which has day by day entries of exact amounts that were used by the trucks and just my own logic tells me that that's probably the most accurate record we have in this whole trial. I realize that there could be an argument that it is a photocopy, and as I recall the testimony, also of Mr. Mingo, this was charges of that office or he was in and out of there all of the time. This is how they ran the business. This is the type of record that was actually kept and the only record that could be referred to. So, I am not going to change my opinion on that." Transcript, pp. 15-16.

It is clear the trial court was satisfied with the foundation laid for the necessity and trustworthiness of Exhibit K and its admission in evidence. Given the wide discretion allowed to the trial court and the substantial although conflicting evidence upon which Exhibit K was admitted, we are not persuaded that the trial court clearly abused its discretion in admitting the exhibit into evidence.

The judgment in favor of the respondent is therefor affirmed.

No attorney fees are allowed, costs to respondent.

SHEPARD, C. J., BAKES, J., and MAYNARD, J., Pro Tem., concur.

BISTLINE, Justice, dissenting.

The Court properly notes that the legislative purpose behind § 9-414 I.C. was to broaden the scope of admissibility...