Professional Ins. Services, Inc. v. Sizemore Elec. Co., Inc.

Decision Date20 September 1988
Docket NumberNo. 77088,77088
Citation373 S.E.2d 276,188 Ga.App. 463
PartiesPROFESSIONAL INSURANCE SERVICES, INC. v. SIZEMORE ELECTRIC COMPANY, INC.
CourtGeorgia Court of Appeals

Billy R. Smith, for appellant.

John L. Blandford, Chamblee, for appellee.

McMURRAY, Presiding Judge.

Plaintiff Professional Insurance Services, Inc., brought this suit on open account against Sizemore Electric Company, Inc. It contended that defendant was indebted to it in the amount of $8,429.57 and that that sum represented the balance due for the provisions of various insurance coverages.

At trial, plaintiff's president testified that the balance shown on plaintiff's ledger sheet, $8,429.57, accurately reflected the amount of defendant's indebtedness to plaintiff. No objection was made with respect to this oral evidence.

Plaintiff did not introduce its ledger sheet or any other documents into evidence and, at the close of plaintiff's case, defendant moved for a directed verdict. The trial court granted the motion, ruling that plaintiff failed to make out a prima facie case since it did not introduce documentary evidence reflecting the balance due. The jury obligingly returned a verdict in favor of defendant. Judgment was entered accordingly and plaintiff appealed. Held:

1. If there is "any evidence" creating a material issue of fact, a motion for a directed verdict cannot be granted. Little v. Little, 173 Ga.App. 116, 325 S.E.2d 624; OCGA § 9-11-50(a). Was "any evidence" creating a material issue of fact introduced in the case sub judice? Yes, it was.

" 'If secondary evidence ... is admitted without objection, it is to be considered as evidence, and a charge or verdict may be based upon it; and such verdict will not be set aside as being unsupported by the evidence.' Munroe v. Baldwin, 145 Ga. 215, 88 S.E. 947." Thomas, etc., Lumber Co. v. Atlantic Mill, etc., Co., 24 Ga.App. 749(2) 102 S.E. 135. Thus, in a suit on open account, a prima facie case is made by a plaintiff where oral evidence concerning the balance due is introduced without objection even though documents setting forth the balance due are not received in evidence. Thomas, etc., Lumber Co. v. Atlantic Mill, etc., Co., 24 Ga.App. 749(2), 102 S.E. 135, supra. See also Rothstein v. Mirvis & Fox, Inc., 155 Ga.App. 79, 80(2) 270 S.E.2d 301.

In the case sub judice, oral evidence concerning the amount of defendant's indebtedness to plaintiff was introduced without objection. This evidence made out a prima facie...

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7 cases
  • Kroger Co. v. US Foodservice of Atlanta
    • United States
    • Georgia Court of Appeals
    • November 19, 2004
    ...that she had properly credited Kroger's account for all shorts, returns, or damaged products. See Professional Ins. Svcs. v. Sizemore Elec. Co., 188 Ga.App. 463, 373 S.E.2d 276 (1988). Moore explained that certain credits due on an invoice might not have appeared promptly on a statement bec......
  • Roberson v. OCWEN FEDERAL BANK FSB
    • United States
    • Georgia Court of Appeals
    • July 2, 2001
    ...into evidence as an exhibit to the affidavit as a business record exception to the hearsay rule. Professional Ins. Svcs., v. Sizemore Elec. Co., 188 Ga.App. 463, 464(1), 373 S.E.2d 276 (1988). However, although the defendant objected to the admission of the affidavit in support of plaintiff......
  • Kemira, Inc. v. Williams Investigative & Sec. Services, Inc.
    • United States
    • Georgia Court of Appeals
    • October 18, 1994
    ...Ga.App. 749(2) (102 SE 135). See also Rothstein v. Mirvis & Fox, 155 Ga.App. 79, 80(2) (270 SE2d 301)." Professional Ins. Svc. v. Sizemore Elec. Co., 188 Ga.App. 463(1), 373 S.E.2d 276. "In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict su......
  • Allison v. State, s. 77063
    • United States
    • Georgia Court of Appeals
    • September 20, 1988
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