Empire Diesel, Inc. v. Brown

• Decision Date: 15 May 1961
• Docket Number: No. 19662,19662
• Citation: 361 P.2d 964,146 Colo. 477
• Parties: EMPIRE DIESEL, INC., Plaintiff in Error, v. William V. BROWN, Defendant in Error.
• Court: Colorado Supreme Court

Page 964

361 P.2d 964

146 Colo. 477

EMPIRE DIESEL, INC., Plaintiff in Error, v. William V. BROWN, Defendant in Error.

No. 19662.

Supreme Court of Colorado, In Department.

May 15, 1961.

Blaise J. Jacobucci, Donald W. Marshall, Denver, for plaintiff in error.

Caddes & Capra, Denver, for defendant in error.

MOORE, Justice.

September 9, 1957, plaintiff in error Empire Diesel, Inc., to whom we will refer as Empire, was organized as a Colorado corporation and its authorized shares were issued--1,000 to Walter K. Clark, and 1,000 to others. The corporation conducted a diesel repair shop. On December 17, 1958, Jerome Clay acquired a portion of the stock, and purchased the remaining shares on January 20, 1959. Thereafter the stock was held 999 shares by Clay, 1,000 shares by his wife, and 1 share by one Pieratt.

Defendant in error Brown, a diesel mechanic, was employed at the place of business from November 1957 to October 1958, at a stipulated hourly wage with time and a half for overtime, and as part of his compensation his Blue Cross and Blue Shield premiums were to be paid by Empire.

March 3, 1959, Brown filed his complaint naming Empire and W. K. Clark as defendants. In a first claim he sought $953.60 for wages, attorneys fees and Blue Cross premiums for the last three months of his employment. The second claim is directed to Clark alone and was dismissed. A third claim seeks judgment on two loans allegedly made by Brown to Empire aggregating $500. Brown had judgment for these amounts except that the wage claim was reduced to $853.60 to allow for a later credit.

Clark filed an answer but did not appear at the trial and is not a party here.

Although the business volume was considerable, the concern did not prosper and was delinquent from time to time in the payment of wages. Brown determined to keep his own record of his earnings and payments thereon.

Over Empire's objection the trial court received in evidence Exhibit A consisting of several sheets of paper which set forth, week by week from July 5, 1958 to October 11, 1958, Brown's base pay, his overtime and the payments made to him on account by Empire. As the account accrued entries were made by Mrs. Brown at Brown's direction. The account so kept is legible and readily understandable. No balance is computed but the amount of the judgment based thereon is not questioned.

When the exhibit was offered counsel for Empire objected as follows:

'Defendant, your Honor, objects to the admission of Exhibit A, the purported record as being based, at best, on hearsay statements and self-serving declarations made by plaintiff to his own wife. That certainly does not meet the requirements for a record made in the regular course of business of original entries in that sort of record.'

The objection was overruled and this ruling is assigned as error.

That the entries were 'original' is patent; no other entries or records were made. That the accounting reflected hearsay statements is no ground for its rejection. Books of account frequently, in fact usually, are kept by the scrivener in large part from information supplied. That they were self-serving declarations requires little comment. Any such record showing a favorable balance is self-serving. Certainly Exhibit A is not self-serving as to the ten credit entries, payments by Empire to Brown, aggregating more than $1,200. Here as below, counsel for Empire objects that the entries were not 'in the regular course of business' but the record discloses nothing which tends to remove them from that classification. The business and its regular course were Brown's employment by Empire and the payment of his wages. The exhibit was identified and verified by both the Browns. No particular form in which a record is kept and no special skill on the part of the bookkeeper is required to bring such records within the exception to the hearsay rule. 20 Am.Jur. sec. 1061, p. 907. The exhibit is not inherently incredible, the items and computations are not questioned, it was intended to and did supply an accounting of transactions too numerous and complex to be committed to memory. Without detailing the essential requirements we find that Exhibit A comes within the well known exception to the hearsay rule permitting the introduction in evidence of business records. The trial court regarded it as competent. No error resulted from this ruling.

Two loans for $200 and $300 respectively were made under identical circumstances. In each case a truck was in the shop for repairs and parts were needed to complete the work. Empire was without cash and unable to purchase such parts on credit. Only on completion of the repairs was payment for the jobs to be expected. Clark, Empire's president and manager, requested the loans from Brown and upon consummation thereof the parts were obtained and installed in the vehicles. Mrs. Brown signed the checks, and the payee named therein in each case was Clark. The checks were endorsed by Clark and Empire and reached Empire's account in the bank.

It is urged that they were loans to Clark individually and not to Empire. To further support this claim Brown's...