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

• Decision Date: 20 September 1988
• Docket Number: No. 77088,77088
• Citation: 373 S.E.2d 276,188 Ga. App. 463
• Parties: PROFESSIONAL INSURANCE SERVICES, INC. v. SIZEMORE ELECTRIC COMPANY, INC.
• Court: Georgia Court of Appeals

Page 276

373 S.E.2d 276

188 Ga.App. 463

PROFESSIONAL INSURANCE SERVICES, INC. v.SIZEMORE ELECTRIC COMPANY, INC.

No. 77088.

Court of Appeals of Georgia.

Sept. 20, 1988.

Billy R. Smith, for appellant.

John L. Blandford, Chamblee, for appellee.

McMURRAY, Presiding Judge.

PlaintiffProfessional 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 alsoRothstein 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 case and it was...