Hertz Corp. v. McCray

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG; BANKE, P.J., and COOPER
• Citation: Hertz Corp. v. McCray, 402 S.E.2d 298, 198 Ga.App. 484 (Ga. App. 1991)
• Decision Date: 04 February 1991
• Docket Number: No. A90A2237,A90A2237
• Parties: HERTZ CORPORATION v. McCRAY.

Page 298

402 S.E.2d 298

198 Ga.App. 484

HERTZ CORPORATION v. McCRAY.

No. A90A2237.

Court of Appeals of Georgia.

Feb. 4, 1991.

Karl J. Howe, Jr., Marietta, for appellant.

Ida McCray, pro se.

BIRDSONG, Presiding Judge.

Appellant Hertz Corporation appeals the order of the state court directing verdict for appellee Ida McCray in a bench trial.

Appellee rented a car from appellant, and elected to purchase an optional loss/damage waiver. This waiver, in effect, provided that appellant waive any claim against appellee for loss or damage to its rental car unless it results from, inter alia, "the use of the car, with [appellee's] permission, by persons other than authorized operators."

Appellant brought suit against appellee for damages to the rental vehicle. Appellee admitted, during her testimony, that she loaned the car to Bobby C. Lampley who subsequently wrecked the car. Held:

1. In a bench trial there is no jury verdict. Thus, it is procedurally incorrect to move for a directed verdict; and such motion, as well as the grant thereof, will be construed as one for involuntary dismissal under OCGA § 9-11-41(b). State of Ga. v. Hamm, 193 Ga.App. 184, 387 S.E.2d 344. " 'Under Sec. 41(b), a trial judge in a non-jury case expressly has the power to adjudicate the case on the merits at the conclusion of plaintiff's case. If the trial judge has the power of adjudication of the facts upon motion for involuntary dismissal in a non-jury case, he must weigh the evidence. There is no obligation in the statute that the judge in determining the facts must consider plaintiff's evidence in a light most favorable to the plaintiff. Since the court determines the facts as well as the law, it necessarily follows that the motion may be sustained even though plaintiff may have established a prima facie case.' " Kennery v. Mosteller, 133 Ga.App. 879, 880-881, 212 S.E.2d 447. " 'Thus, in cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them.' " Safeway Ins. Co. v. Holmes, 194 Ga.App. 160, 161(1), 390 S.E.2d 52.

2. Appellant asserts the trial court erred in not permitting appellant's witness to be questioned about the witness' qualifications to testify as to appellant's books and records.

During the course of the trial, appellant called as a witness the southeast regional damage appraiser for the Hertz Corporation and attempted through this witness to lay the foundation for the introduction of certain copies of documents alleged to be business records of Hertz. Although the witness testified initially that he was familiar with the method used by plaintiff in keeping books and records and with the records of Hertz of this particular transaction relating to the subject of this lawsuit, the trial court sustained several varying objections to the testimony of this witness concerning the type of business records maintained by Hertz in the ordinary course of business, and whether the entries on certain records were made at or near the time of the occurrence of the transaction to which they referred.

OCGA § 24-3-14 prescribes the statutory standard for the admission in evidence of records made in the regular course of business. This Code section is to be liberally interpreted and applied. OCGA § 24-3-14(d).

The trial court stated that appellant must show the witness "keeps these records" and "they are kept under his control and supervision."

Before a writing or record is admissible, under OCGA § 24-3-14(b), a foundation must be laid through the testimony of a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of a business at the time of the event or within a reasonable time thereafter. Suarez v. Suarez, 257 Ga. 102 103(2), 355 S.E.2d 649. Copies of business records can be admitted without accounting for the absence of the originals once the above foundation has been laid; likewise photostatic reproductions or duplicate originals of any original business record or document are admissible in lieu of the original. Wiggins v. State, 249 Ga. 302, 305(2)(c), 290 S.E.2d 427; Smith v. Smith, 224 Ga. 442, 443(1), 162 S.E.2d 379. A witness identifying business records under OCGA § 24-3-14 does not have to have personal knowledge of the correctness of the records or have made the entry himself. Davis v. State, 194 Ga.App. 902, 904(2), 392 S.E.2d 327; Whittington v. State, 155 Ga.App. 667(2), 272 S.E.2d 532; see Smith v. Bank of the South, 141 Ga.App. 114, 232 S.E.2d 629 (lack of personal knowledge of making of business records affects weight not admissibility). Moreover, unlike the so-called "official records" exception of some jurisdictions, the Georgia Business Records Act does not require that the person laying the foundation for business records' admissibility be the custodian of the records, that is, be the person who "keeps the records" under his "control and supervision." Thus, "[n]o particular person, such as a bookkeeper or salesman, is required to be called," rather, "[a]ny person who is familiar with the method of keeping the records and can identify them may lay the necessary foundation." Green, Ga.Law of Evid. (3d ed.), Business Entries, § 313. It would appear that the necessary degree of familiarity could be obtained through a number of common business practices, such as being the records custodian, making the entries during the usual course of employment, observing the method of records keeping through on-the-job training, experience or observation, or by attending courses of instruction sponsored by the business regarding the method of keeping the particular business records in question. The manner in which familiarity is obtained, like the question of whether the witness has personal knowledge of the particular business entry, goes only to weight and not to document admissibility. Cf. Smith, supra. Thus, it is apparent the trial court required overly stringent foundation requirements as a prerequisite to document admissibility.

However, a case will not be reversed merely because error may have occurred. Appellant is required to show harm as well as error to prevail on appeal (Baker v. Baker, 194 Ga.App. 477, 480, 390 S.E.2d 892), and this appellant must show by the record as harm cannot be established by unsupported assertions contained in trial briefs (Rowe v. Rowe, 195 Ga.App. 493, 393 S.E.2d 750). The record in this case reflects that appellant made no proffer as to the contents of the documents, and that except for Plaintiff's Exhibit A, which was admitted in evidence, none of the other exhibits in question is attached to the record of trial. Further, Plaintiff's Exhibits B, C, D, E and F do not appear to have been formally offered in evidence by appellant. Further, examination of the record and transcript shows that the missing documents were at best identified by name, and that no attempt was made to identify their contents for record and subsequent appellate purposes. Under these circumstances, appellant has failed to show harm within the meaning of Baker and Rowe, supra. "It is a well-established appellate rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of error is not brought up so that this court can make its determination from a...