Loveman, Joseph & Loeb v. McQueen

• Decision Date: 26 June 1919
• Docket Number: 6 Div. 785
• Citation: 203 Ala. 280,82 So. 530
• Court: Alabama Supreme Court
• Parties: LOVEMAN, JOSEPH & LOEB v. McQUEEN.

82 So. 530

203 Ala. 280

LOVEMAN, JOSEPH & LOEB v. McQUEEN.

6 Div. 785

Supreme Court of Alabama

June 26, 1919

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Assumpsit by Loveman, Joseph & Loeb against J.W. McQueen. Judgment for defendant, and plaintiff appeals. Affirmed.

Mayfield J., dissents in part.

The action is on the common count, including one for an account stated, and the complaint is accompanied by a sworn itemized statement of the account running from July 1, 1909, to July 6, 1914. Originating in defendant's purchase of a Sterns car and in a general automobile service, the account shows a balance of $158.81 due on August 1, 1909, and by monthly additions a balance of $2,047.15 on July 6, 1914. The items of the account include gas, oil, graphite, soap, labor for cleaning and overhauling and repairing, and perhaps two score or more of different parts furnished one or more times and chauffeur's salary. These items are about 630 in number and range from 5 to 50 each month. Plaintiff offered in evidence, in proof of the account collectively and severally eight sheets from their loose-leaf ledger purporting to cover the account between the plaintiff and defendant, but beginning with the statement of a balance and items beginning on July 27, 1909. It appeared that the items entered on these sheets were transcribed by the motor company's bookkeepers each day from check slips handed in by the salesmen or workmen showing items of business transaction by the maker personally, but of which the bookkeepers had no knowledge otherwise than from the slips themselves. There were five bookkeepers in the service of the company during the period of the account, two of whom testified to and identified the parts of the account kept by each in the manner stated. Two of them could not be found, and one was shown to be ill at Anniston, Ala., and unable to attend. The handwriting of these absent bookkeepers was duly proved. It appeared that the check slips or charge ticket referred to were all lost or destroyed. It did not appear how many salesmen or mechanics had been in the company's employment during the period of the account, who they were or whether they were living or dead or within or without the jurisdiction of the court. No testimony was offered on that subject. It appeared that several statements on the account made up from these ledger sheets were submitted to the defendant from time to time, and according to some of the testimony he did not dispute the account except as to a few specified items. The defendant objected to the admission of the several ledger sheets because: (1) They are not shown to be true and accurate; (2) because it is not shown that the persons making the ledger entry had any personal knowledge of the transaction so transcribed; (3) because they are hearsay; (4) because they are not the original entry; and (5) because they were transcribed from charge slips. The objection being sustained and the ledger sheets being excluded, plaintiff took nonsuit for bill of exception.

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellant.

Tillman, Bradley & Morrow, of Birmingham, for appellee.

SOMERVILLE J.

Prior to our present statute (Code 1907, § 4003) it was the settled rule in this state that--

"Original entries made by a person in his own books, or made by his clerk, when done in the ordinary course of business, and contemporaneously with the transaction to which such entries relate, are generally admissible in evidence to prove the correctness of all items within the knowledge of the person making them. Before [they are] admissible, the entries must be sworn to as having been made by the party who made them, and that he knew of their correctness at the time they were made, if such party is living. If he is dead, or insane, or beyond the jurisdiction of the court, proof of his handwriting will be sufficient." Holling v. Fannin, 97 Ala. 619, 12 So. 59; McDonald v. Carnes, 90 Ala. 147, 7 So. 919; Murray v. Dickens, 149 Ala. 240, 42 So. 1031; Dickens v. Murray, 163 Ala. 556, 50 So. 1019.

And the knowledge of the recorded transactions by the person making them must have been a personal knowledge--not a knowledge gained by hearsay from others. Dismukes v. Tolson, 67 Ala. 386.

It is clear that these limitations upon the use of shopbook entries as evidence excluded such entries as were made by bookkeepers of transactions reported to them, whether orally or in writing, by the clerks or employés who personally participated therein, unless such clerks or employés testified in corroboration thereof. Ala. Iron Co. v. Smith, 155 Ala. 287, 46 So. 475. This narrow rule of the common law was responsive to the primitive conditions of its origin, and was no doubt fairly well adapted to the simple methods of business and bookkeeping then in vogue.

But, when applied to the conditions of modern business, particularly in the larger towns and cities, it is manifestly inadequate, and is, indeed; an effective bar to the proof of book accounts.

The difficulties in the way of such proof have been thus forcibly stated by Prof. Wigmore:

"Now the ordinary conditions of mercantile and industrial life in some offices do in fact constantly present just such a case of practical impossibility. Suppose an offer of books representing transactions during several months in a large establishment. In the first place, the employés have in many cases changed, and the former ones cannot be found; in the next place, it cannot always be ascertained accurately which employé was concerned in each one of the transactions represented by the hundreds of entries; in the third place, even if they could be ascertained, the production of the scores of employés to attend court and identify in tedious succession the detailed items of transactions would interrupt and derange the work of the establishment, and the evidence would be obtained at a cost practically prohibitory; and finally the memory of such persons, when summoned, would usually afford little real aid. If unavailability or impossibility is the general principle that controls (ante, 1521), is this not a real case of unavailability? Having regard to the facts of mercantile and industrial life, it cannot be doubted that it is. In such a case, it should be sufficient if the books were verified on the stand by a supervising officer who know them to be the books of regular entries kept in that establishment, and the production on the stand of a regiment of bookkeepers, salesmen, shipping clerks, teamsters, foremen, or other subordinate employés should be dispensed with. No doubt, much should be left to the discretion of the trial court; production may be required for cross-examination, where the nature of the controversy seems to require it. But the important thing is to realize that upon principle there is no objection to regarding this situation as rendering in a given case the production of all the persons practically as impossible as in the case of death.

"The conclusion is, then, that where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, there is no objection to receiving that entry under the present exception, provided the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so. Why should not this conclusion be accepted by the courts? Such entries are dealt with in that way in the most important undertakings of mercantile and industrial life. They are the ultimate basis of calculation, investment, and general confidence in every business enterprise; nor does the practical impossibility of obtaining constantly and permanently the verification of every employé affect the trust that is given to such books. It would seem that expedients which the entire commercial world recognizes as safe could be sanctioned, and not discredited, by courts of justice. When it is a mere question of whether provisional confidence can be placed in a certain class of statements, there cannot profitably and sensibly be one rule for the business world and another for the courtroom. The merchant and the manufacturer must not be turned away remediless because methods in which the entire community places a just confidence are a little difficult to reconcile with technical judicial scruples on the part of the same persons who as attorneys have already employed and relied upon the same methods. In short, courts must here cease to be pedantic and endeavor to be practical." 2 Wigmore on Ev. § 1530, p. 1895.

Judge Freeman, in his note to Union Bank v. Knapp, 3 Pick. (Mass.) 96, 15 Am.Dec. 181, 193, says:

"It seems conclusively to follow that the entries if shown by competent proof to have been made by one whose duty it was to make them, and at such a time and in such a mode that they must be regarded as original entries, ought to be admitted in evidence, whether the person who made them is produced in court or not, *** especially when it is shown that his books are generally correct. The presence or absence at the trial of the clerk who made the entries does not make them any more or less a part of the res gestae. Others as well as he may testify that they were made by him in the course of his duty; that they were made at the time the transactions to which they refer occurred; that they are original entries; that his records and books were *** faithfully kept; and that his reputation for accuracy and honesty is deservedly high. *** The clerk, if alive and present, would not be required to remember the

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