Tyner v. Sheriff

• Decision Date: 10 November 1982
• Docket Number: No. 64628,64628
• Citation: 164 Ga.App. 360,297 S.E.2d 114
• Parties: TYNER et al. v. SHERIFF, et al.
• Court: Georgia Court of Appeals

Page 114

297 S.E.2d 114

164 Ga.App. 360

TYNER et al. v. SHERIFF, et al.

No. 64628.

Court of Appeals of Georgia.

Nov. 10, 1982.

Tom Strickland, Athens, for appellants.

Cecil L. Clifton, Jr., Toccoa, for appellees.

CARLEY, Judge.

The genesis of the instant case lies in the business relationship between the parties, each of whom is a contractor. Plaintiff-appellants initiated the litigation by filing suit against defendant-appellees. Appellees answered, denying the material allegations of the complaint, and counterclaimed. The case was submitted to a jury and a verdict for appellees was returned in the main action and also on the counterclaim. Judgment was entered on the verdict and, after their motion for new trial was denied, appellants bring the instant appeal.

1. Error is enumerated on the admission of certain testimony over appellants' "parol evidence rule" objection. Review of the transcript demonstrates no reversible error in the admission of the testimony. See generally Building Associates v. Crider, 141 Ga.App. 825, 827(3), 234 S.E.2d 666 (1977).

2. Appellants enumerate as error the admission of summaries of appellees' business records. "Summarized statements of what books of account and records show are admissible, provided the books and records themselves are accessible to the court and the parties. [Cit.]" Vaughn v. Saul, 143 Ga.App. 74, 79, 237 S.E.2d 622 (1977). See also Cotton v. John W. Eshelman & Sons, 137 Ga.App. 360, 362(2), 223 S.E.2d 757 (1976); Hope Electric v. Gemini Construction Co., 146 Ga.App. 636, 637(2), 247 S.E.2d 149 (1978); A.S. Wikstrom v. Norair Engineering Corp., 156 Ga.App. 49, 50(2), 274 S.E.2d 28 (1980).

Under the above cited authorities, it appears that the summaries of appellees' business records were not erroneously admitted in the instant case. The fact that the summaries themselves did not qualify as "business records" under Code Ann. § 38-711 is immaterial to their admissibility. "The relevant holdings in the Cotton and Vaughn & Co. decisions have application when the 'summary,' not otherwise admissible under Code Ann. § 38-711 as a business record, is introduced to summarize admissible but voluminous or complex records. [Cit.]" (Emphasis supplied.) Wickes Lumber v. Energy Efficient Homes, 157 Ga.App. 303(1), 277 S.E.2d 298 (1981).

Moreover, such summaries are not themselves "true and complete" extracts of the "books or records of any incorporated company" within the meaning of Code Ann. § 38-626 and the twenty-day notice provision of that statute is irrelevant in a determination of the admissibility of the summaries. Summaries are merely compilations of extracted portions of books and records. Their admissibility is based, in part, upon the underlying accessibility of the summarized books and records to the court and the parties, which accessibility was shown in the instant case. See A.S. Wikstrom, 156 Ga.App. at 50(2), 274 S.E.2d 28, supra.

Contrary to appellants' assertion, "the information contained in the document did not constitute hearsay and was competent evidence. [Cit.]" Hope Electric, 146 Ga.App. at 637-638, 247 S.E.2d 149, supra. We find no error in the admission of the summaries.

3. Appellants enumerate as error the admission of certain testimony over an objection to its relevancy. Our review of the transcript demonstrates that, while it probably would not have been error to exclude the testimony, it was not reversible error to allow it into evidence. "It has long been the rule in this state that where the relevancy or competency of evidence is doubtful, it should be admitted, and its weight left to the determination of the jury. [Cit.]" Newman v. Roberts, 147 Ga.App. 157, 158, 248 S.E.2d 217 (1981).

Appellants also assert on appeal that the testimony was inadmissible hearsay. No such hearsay objection to the testimony was raised at the time it was introduced. "By not stating a ground for objection at that time, it was therefore waived." Reaves v. State, 242 Ga. 542, 551, 250 S.E.2d 376 (1978).

4. On appeal, appellants assert that the trial court erred "in allowing a witness to testify as an expert when he had not been qualified as an expert." Review of the relevant portions of the transcript demonstrates that no objection to the witness' qualification as an expert was raised in the court below. Accordingly this enumeration is without merit. Maynard v. Readdick, 128 Ga.App. 368, 369(2), 196 S.E.2d 688 (1973).

5. Appellants assert that the trial court erroneously limited pre-trial discovery. It appears that, pursuant to Code Ann. § 81A-116, the trial court entered a pre-trial order. That order stated that "[d]iscovery will be completed on or before 8-29-80 ... All [documents, photographs and other evidence] will be presented to opposing counsel for inspection and/or copying not later than Sept. 2, 1980. Any such items acquired or discovered after that date will be admitted only upon the Court's further order upon proper showing." The failure to allow further pre-trial discovery subsequent to the entry of the pre-trial order was not, in the instant case, erroneous. In the first instance, it does not appear that appellants ever pursued the proper avenue for obtaining discovery subsequent to the entry of the pre-trial order. "Here a pre-trial order had issued limiting the issues and controlling the subsequent course of the action ... [T]here was no timely...