Weisman v. Hopf-Himsel, Inc.

Decision Date20 March 1989
Docket NumberNo. 63A01-8807-CV-00228,INC,HOPF-HIMSE,63A01-8807-CV-00228
Citation535 N.E.2d 1222
PartiesFred WEISMAN, Mark Weisman, Dennis Weisman, Weisman Farms, Defendants-Appellants, v., Plaintiff-Appellee.
CourtIndiana Appellate Court

Roger S. Curry, Jasper, for defendants-appellants.

John S. Chappell, Chappell & Birk, Jasper, for plaintiff-appellee.

ON PETITION FOR REHEARING

RATLIFF, Chief Judge.

Fred Weisman, his sons Mark and Dennis Weisman, and Weisman Farms appealed the judgment of the trial court finding them jointly and severally liable to Hopf-Himsel, Inc. for $13,582.00 in tractor repair and rental costs. On review this court held that plaintiff's exhibits one and two constituted hearsay evidence and, therefore, were inadmissible. Weisman v. Hopf-Himsel, Inc. (1989), Ind.App., 532 N.E.2d 29, 32. We rejected Hopf-Himsel's argument that both exhibits should be admitted under the business records exception to the hearsay rule. Id. We held that the hand-written summaries were not the original or first permanent entries as required under the business records exception to the hearsay rule, and therefore found the exhibits to be inadmissible. Id. After further reflection we are persuaded that our original opinion is in need of modification. Therefore, we grant rehearing for that purpose and to address the remaining issue.

We note first that Hopf-Himsel was correct in stating that we made a factual error in the discussion section of our original opinion. Weisman at 31. We inaccurately described the process by which Hopf-Himsel's exhibits one and two were compiled. Id. The following is a revised description of that process.

Hopf-Himsel's exhibits one and two were invoices purporting to represent items for which the Weismans were billed including parts and labor for the repair of their tractor. Attached to the handwritten invoices were computer generated statements listing the parts used in the tractor repair and their prices. The foundation for the admission of exhibits one and two was Our original opinion held that exhibits one and two should not have been admitted into evidence under the business records exception to the hearsay rule because the hand-written invoices were based on information derived from sources not in evidence. One of these sources, the labor time tickets, was never introduced into evidence by Hopf-Himsel and only token examples of the tickets were eventually admitted as defendant's exhibit C. The few time tickets entered certainly fell short of the labor charges noted on the invoices. Another source of information used in preparing the invoices was the attached set of computer printouts detailing the parts used in the repair effort. While admitted as part of plaintiff's exhibits one and two, it is our opinion that an inadequate foundation was laid for the admission of these printouts.

the testimony of Charles Hopf, co-owner of Hopf-Himsel. Hopf testified that Hopf-Himsel employees fill out a job order which has three copies; two copies are forwarded to the parts department and the other copy is retained by the service manager. Mechanics and technicians prepare a separate time ticket on which they record how long they labor for each customer. A copy of this time ticket is attached to the service manager's copy of the job order. The service manager totals the labor charges and forwards his copy of the job order to the parts department. A listing of the parts used on a particular job is also attached to the job order. The job order is then forwarded to the general office. Hopf testified that office personnel prepare a billing statement with the aid of a computer, based on the information forwarded. Exhibits one and two each consist of a handwritten summary of the parts and labor charges billed to the customer. Attached computer printouts detailing the parts used in the repair are included in each exhibit. No labor time tickets are attached.

We are fully cognizant of the fact that evidentiary inroads have been made concerning the admission of computer printouts and understand that modern record keeping techniques rely heavily on the use of computers. In recent cases we have upheld the admission into evidence of certain computer generated documents, but only where a proper evidentiary foundation has been provided at the trial level. See e.g., Hatton v. State (1986), Ind.App., 498 N.E.2d 398, 400. The Indiana Supreme Court has also approved the admission into evidence of business records which are stored in a computer and electronically printed out on demand, but only where a sufficient foundation is laid. See e.g., Allen v. State (1982), Ind., 439 N.E.2d 615. Quoting Brandon v. State (1979), 272 Ind. 92, 98, 396 N.E.2d 365, 370, the Supreme Court stated:

"[I]t must be shown that the electronic computing equipment is standard, that the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and that the testimony satisfies the court that the sources of information and method and time of preparation were such as to indicate its authenticity and accuracy and justify its acceptance as trustworthy."

Allen, 439 N.E.2d at 617. In the present case, no attempt was made to show that the printouts were the product of a standardized computer system. Absent this showing a proper foundation was not laid for the admission of the printouts, and the trial court erred in admitting the printouts into evidence.

In our prior opinion we failed to note that the computer printouts of the parts used were inadmissible for lack of a proper foundation, however, we did hold that the failure to include the time tickets upon which the labor charges were based was fatal to the admission of exhibits one and two. On rehearing we have found all supporting documentation of the invoices to be either inadmissible or unavailable to this court. Therefore, the question becomes whether or not an invoice is admissible into evidence where the document merely summarizes the charges levied against the Weismans. If such invoices are admissible, the admission of the computer printouts constituted harmless error. Indiana Rules of Procedure, Trial Rule 61; After careful consideration of the issue we hold that such invoices are properly admissible into evidence. See, Herman v. Steamboat Springs Super 8 Motel (1981), Colo.App., 634 P.2d 1005, 1007, (Invoices prepared from employee time sheets found to be admissible as records kept in the ordinary course of business.); E.N. Nason, Inc. v. Land-Ho Dev. Corp. (1979), Me., 403 A.2d 1173, 1179, (Regularly prepared summaries made at or near the time of the transaction based on information supplied in the president's daily notes were held to be admissible into evidence as were invoices prepared from such summaries.); Theiseen-Nonnemacher, Inc. v. Dutt (1986), Minn.App., 393 N.W.2d 397, 400, (Bills and summary listings may be acceptable evidence even without the inclusion of underlying support.); AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29, 33, 440 N.E.2d 600, 605, (Invoices are admissible into evidence if they qualify as business records.); Marquis Const. Co. v. Johnson Masonry (1983), Tex.App., 665 S.W.2d 514, 514-516. 1

and see Palamara v. Palamara (1987), Ind.App., 513 N.E.2d 1223, 1231-32.

In Marquis Construction, the Court of Appeals of Texas was presented with a situation analogous to that presently before this court. The Texas court also was initially concerned with the plaintiff's failure to prove the "underlying source" of the invoices presented. Marquis Construction, 665 S.W.2d 514. A subcontractor had introduced invoices into evidence which were based on data received from foremen, and discarded notes and memoranda. Id. at 516. Upon rehearing, the court held that an invoice, which is in itself a business record, should not be treated as a summary of business records and is admissible if a proper foundation is laid. Id. at 515. After reviewing the record in the present case, we conclude that the handwritten invoices are original business records in and of themselves. Therefore, providing a proper foundation was laid, the invoices are admissible into evidence.

In order for a document to be admitted into evidence under the business records exception to the hearsay rule, the party offering the document into evidence must show that it is an original or first permanent entry made in the routine course of business at or near the time of the recorded transaction by one having both a duty to so record and personal knowledge of the transaction represented by the entry. Wilson v. Jenga Corp. (1986), Ind.App., 490 N.E.2d 375, 376; Baker Hopf demonstrated a detailed knowledge of how the invoices were prepared. His testimony was sufficient, therefore, to identify the invoices. Cf, Wilson, 490 N.E.2d at 377. As noted in the previous paragraph, the invoices were original entries and the testimony shows that such invoices were prepared in the ordinary course of Hopf-Himsel's business. In Marquis Construction, the testimony of the subcontractor's owner was sufficient to establish his personal knowledge of the information contained in the daily summaries he prepared, notwithstanding that some of his information was based on oral reports from foremen on the job site. Marquis Construction, 665 S.W.2d at 516. Similarly, we find that the office personnel who prepared the Hopf-Himsel invoices possessed the requisite personal knowledge of the transaction despite receiving information from other sources within the business. Finally, the testimony describing the process by which the invoices were prepared indicates that the invoices were prepared within a reasonable time of the actual transaction or repair of the tractor. Therefore, a proper foundation having been laid, we hold that the invoices were properly admitted into evidence by the trial court.

                v. Wagers (1984), Ind.App., 472 N.E.2d 218, 221, trans. denied, quoting,
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