Hooven v. First Nat. Bank

• Citation: 273 P. 257,134 Okla. 217,1928 OK 665
• Decision Date: 20 November 1928
• Docket Number: 18861.
• Parties: HOOVEN et al. v. FIRST NAT. BANK IN ARDMORE.
• Court: Supreme Court of Oklahoma

273 P. 257

134 Okla. 217, 1928 OK 665

HOOVEN et al. v. FIRST NAT. BANK IN ARDMORE.

No. 18861.

Supreme Court of Oklahoma

November 20, 1928

Rehearing Denied Jan. 5, 1929.

Syllabus by the Court.

Where a fact is ascertainable only by the inspection of a large number of documents made up of numerous detailed statements a competent witness, who has perused all the documents, may state summarily the net result thereof.

Appeal from District Court, Carter County; Asa E. Walden, Judge.

Action by the First National Bank in Ardmore against E. A. Hooven and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Sigler & Jackson, of Ardmore, for plaintiffs in error.

H. C Potterf, Earl Q. Gray, and J. M. Poindexter, all of Ardmore for defendant in error.

RILEY J.

This proceeding in error is from a judgment based on a jury's verdict in the sum of $11,368.44, interest, attorney's fee, and costs, in favor of defendant in error, plaintiff below, and against plaintiffs in error, defendants below based upon two causes of action, each founded upon promissory notes executed by defendants below in favor of the plaintiff bank.

Under the first assignment of error, it is contended that the trial court erred in the admission of summaries and tabulations made by two accountants, McCollom and Law, from the book entries of the transactions out of which the dispute arose. The plaintiff did not introduce in evidence the books kept by the bank, but in lieu thereof an abstract as compiled by the accountants. The defendant objected to the admission of such summaries, assigning the statutory objection that the same were incompetent, irrelevant, and immaterial. The transactions covered by the summaries introduced over a period of eight years from 1915 to 1923, although subsequent notes in the years 1920, 1921, 1922, and 1923, were executed by the defendant.

This is not a question of admitting a copy in lieu of an original, but one of admission of consolidated statements covering a multitude of transactions, the original records of which were available to the adverse party. It is obvious that cases may arise, and do arise, where it is impossible, physically, to introduce in evidence voluminous records involved. In many cases it is cumbersome and tends to smother justice in her own robes. 22 C.J. 1094, reads as follows:

"Statements prepared for use at Trial. Written statements prepared for use at a trial are not ordinarily admissible in evidence, although they may be received where they are merely in the nature of summaries of voluminous records which are in evidence."

We realize that the use of summaries is an exception to the rule and countenanced only by reason of necessity and convenience; a safeguard and prerequisite is the production of the originals in court and an opportunity for inspection of them by the adverse party. Such conditions existed in the case at bar. C.-M. 134, showing the book involved to be in court, and C.-M. pp. 171, 172, showing an opportunity for inspection by adverse party.

Mr. Wigmore states the rule thus (Evidence, p. 1473, par. 1230):

"Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements-as the net balance result from a year's vouchers of a treasurer or a year's accounts in a bank ledger-it is obvious that it would often be practically out of the question to apply to the present principal by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demand that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the net results. Such a practice is well established to be proper. Most courts require, as a condition, that the mass thus summarily testified shall, if the occasion seems to require it, be placed at hand in the court, or at least be made accessible to the opposing counsel in order that the material for cross-examination may be available." Boston, etc., Co. v. Dana, 1 Gray (Mass.) 83; 2 Jones, Comm. on Evidence (2d Ed.) 1452, to the effect: "Summaries from or testimony to the contents of books of accounts are sometimes permissible, however, solely on the ground of convenience."

See Shea v. Sewerage & Water Board of New Orleans, 124 La. 299, 50 So. 166, wherein the rule is stated:

"Where a fact is ascertainable only by the inspection of a large number of documents made up of numerous detailed statements, a competent witness, who has perused all the documents, may state summarily the net results thereof." Bourquin v. M. P. Ry. Co., 88 Kan. 183, 127 P. 770.

Our own court embraced the above doctrine in Cecil v. Montgomery, 95 Okl. 184, 218 P. 311, when it quoted:

"The rule rejecting secondary evidence of a writing is subject, among others, to the exception that when the originals consist of numerous accounts, or other documents which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole, oral evidence thereof is admissible."

There is no reason to embrace the rule as to oral testimony in lieu of the multitudinous originals and reject it as to written tabulations...