*1 by inсluding abide requires the rules of this the rule which supported
that each enumeration error be specific transcript the brief or both. references to the record or Judgment Deen, J., Quillian, reversed. P. Mc- C. Murray, Birdsong, J., Shulman, Bаnke, P. Underwood Carley, JJ., concur. Argued 14, November Decided December 1979. Glyndon appellant. Pruitt, for C. Tyler, appellee.
John C. 57990. MINNICH v. FIRST NATIONAL BANK OF
ATLANTA. Judge. Birdsong, Appellee, on account. the First National Action brought money” Atlanta,
Bank оf suit on a "smart Appellant general account. denial. At Minnich answered with a
trial, copies the bank introduced microfilm objection. Following non-jury account over trial, judgment brings was entered for the bank. Minnich appeal contending copies the microfilm admitted objection qualify over do not as business records and that once the microfilm records are removed from consid- insufficiency eration, an of evidence to the ver- dict results. Held: pertinent presents
We affirm. The first fact that itself dealing daily is that we are not flow of checks or negotiable other photocopies documents. The bank offered money of balance statements of due. These were mailed to Minnich at the end of each month. The bank’s witness testified that the exhibits offered the bank were microfilm statements of the account of Minnich each billing logical month reading from the statement. The testimony of this is that each month as the , statement of account was mailed to Minnich a microfilm
copy original of the statement was made a normal business records of the bank. The witness had previously testified that the books and records of the bank kept and that it was course business keep course of business to those books and the documents admitted as records. The witness identified photocoрies money *2 of Minnich’s "smart account” which had course of the bank’s been recorded business.
Contrary appellant’s to contention no in admissible evidence was offered properly indebtedness, we find that the triаl court admitted evidence of the account balance of Minnich’s account with the
bank, in that the evidence admitted was photocopy monthly a suitable statement made that statement each month tо Minnich. At the of a microfilm
contemporaneously mailing with the
very least requisite showing there was a the microfilm was preparation time after made within a reasonable (216 Joiner, 457, 459 234 the statement. Whitehead v. Ga. 317). SE2d part §Ann. "All Code 38-711 reads as follows: other mаking writing record, circumstances of the of such including personal knowledge by lack of the entrant or may weight, they maker, be shown to affect its but shall admissibility.” (Emphasis supplied.) not affect its See respect App. South, Smith v. Bаnk 141 114 Ga. (232 629); Sons, SE2d Cotton v. John W.Eshelman & 137 (223 757). App. Ga. 360 SE2d (38-711) provides The statute further that this section liberally interpreted applied. Wright be See also (134 App. Trust Co.of Ga., 108 Ga. 783 and One (132 Corp. App. Bank, In All v. Fulton Nat. 116). being There no viable defense offered to rebut prima due, facie case of indebtedness the trial court entering judgment did not err for the bank. See First McClendon, 722, 723 Nat. Bank v. 175). Judgment Deen, J., Quillian, C. P. Mc- affirmed. Murray, J., Shulman, Banke, P. Underwood and Carley, JJ., Smith, J., concur. dissents. — — 11,1979
Submitted June Decided December Rehearing 20, 1979 December denied appellant. Harrison, M. David appellee. Douglas Mann, for M. Judge, dissenting. Smith, glaring misconception
An initial on the of the the timing majority appelleе’s on is evidenced its focus photocopying "[T]hat act its record. bank was made within a time after reasonable microfilm preparation photocopy statement,” ofthe "a suitable monthly [was] of a contemporaneously statement made microfilm mailing of that statement which, each month Minnich” are circumstances assuming arguendo they proven trial, have absolutely nothing appeal. to do with the issue (Emphasis supplied.) question Rather, before this proper court whether showing Code 38-711 *3 hearsay to overcome the barrier to the probative admissibility records, of effect its business point subsequent which were microfilmed some in time preparation. part: to their states, That Code section in "Any writing entry record, or whether in the form of an in otherwise, a book or made as a memorandum or of any act, transaction, or occurrence event shall be proof admissible in act, transaction, evidence in of said judge occurrence or event if the trial shall find that it was regular any made the course of business and that it was regular the memorandum or transaction, course of such business to make such act,
record at the time such of or occurrence event or within a reasonable proper analysis time thereafter.” A case, of the instant therеfore, does not reach the microfilm without first considering admissibility the issue of the the records microfilmed. pp. Assembly 1958,
At Ga. L. 543, the General passing stated what it intended §Code "[I]t 38-711: purpose go body the of this Resolution for this on record by adoption indicating of the same as its intent that namely, given section, said 38-711, Code Section be a hospital interpretation records, so that whether liberal ordinary course records, otherwise, in the or mаde of an or record as a memorandum and made business occurred, a or within the time it at or near event thereafter, be would admissible reasonable time producing party necessity or evidence without parties provided are entries, records such who made such provided properly in Code section vouched trial of all admissible that such records shall be and cases though right is denied even of cross-examinаtion application 38-711.” Code section and effect of said supplied.) (Emphasis Dictionary support New International Webster’s (2d Ed., "To ."vouch” as follows: defines by producing or maintain, claim, witnesses or as a give testimony full witness; to vouchers ... To bear legislature meant that the attestation.” It is thus obvious — showing foundation to be laid for a testimonial regular course ofbusiness made in the business record was to make that it course business and suсh record at was within a the time the transaction or the business record reasonable time thereafter could itself before considered or admitted. be following testimony by bank’s vouching concerning witness was the Mann) (By businеss Mr. Are the books and "Q. record: kept in records of the First regular Bank of Atlanta National Mann) (By Yes, Q. course A. sir... Mr. ofbusiness? Butler, Mr. is it the of the First course business keep National Bank to on their books records Mann) premises? (By you Q. A. Yes... Mr. Mr. Butler have brought money you with records the smart books and
account maintained the First Bank of National you Atlanta for A. Yes. Q. Fredric C. Minnich? Have *4 they examined kept A. those books and records? Yes. Were Q. you just previously with A. the records mentioned? right. Yes, Now, Q. sir. All those from examination of you records, me, books and tell do have the statements kept by plaintiff particular Yes, the A. this account? Following testimony photocopy sir.” thе that and after of the
alleged produced record had been and as established court, evidence, 38-710, § the best under Code the trial photocopied hearsay objection, over a allowed the рroduced account, which constituted evidence the appellee support of its claim. testimony quoted An that of reveals examination the produce any which, inde failed to evidence pendеnt itself, a the would business record finding appellee’s regular it the course was business to make such a record at time the — money” paying of the transaction over "smart appellant to or within a reasonable time thereafter. contempo required showing as to Without raneousness, it follows that records constitut appel non-probative hearsay inadmissible, ed and prove com lee to entitlement relief under its tо failed plaint. majority completely ignores the establish The authority supporting ed case this conclusion as well as statutory language expressed legisla the tive and the quotation Collins, from Harris v. 149 Ga. intent. A 107) (1979), App. 638, 639-640 illustrates inadmissibility proffered of the business record below: plaintiff’s objection, "The over allowed evidence inspection receipts motor vehicle or stickers for de they trailer, fendant’s truck and were introduced purpose proving for the truth of the matter writings, i.e., were, contained in the. that the as brakes writings, writings indicated on the 'OK.’ The by person a not available cross examination and were clearly hearsay; and, sincе no there was foundation laid required by Act, Business Records CodeAnn. they 'Preliminary proof could not comein under that Act. necessary writing before the or record is under admissible (to rule). exception hearsay The еvidence should writing include identification of the or record a witness keeping who is familiar with the method records and testify who can thereto and to facts which show that the entry was made in course of business it was the cоurse of business make such memorandum or event within time Georgia Green, reasonable time thereafter.’ Law 619, § 313; Evidence Baldwin, Martin v. (4) (110 344) (1959); Taunton, v. Walburn (2)(130 279) (1963).” (Emphasis supplied.) interpretations For like Logan statutes, similar see *5 838 1972); (Tex. Nation Civ. App., 482 313 Ct. of SW2d
Grady, (Fla. Dist. Holland, 407 269 S2d Rental v. System al Car Beil, 357 NE v. 1972); of Mental Health Ct. of App., Dept. (Ct. Sav Federal Ill., 1976); Monarch 875 App. 2d Ct. of 475 Genser, (Super. 383 A2d v. & Loan Assn. ings 1977). as admissi If to-be treated bank records are N. independent requisite ble, evidence without probative foundation, should rewrite not legislature, further, prerogative any it 38-711; neither is Code § apparently does majority merely court to assume —as contemporaneously all records are made bank with the transaction. majority contradicts of the cases cited None Joiner, Whitehead fact, 234 Ga. In position.
my 317) (216 (1975), cites as majority which independent showing supportive, there had been an of thе admitted preparation trial court as to the time of the Here, transaction. the time of the record relation to . Likewise vouching. independent there was no such reference to Smith v.Bank inappositе majority’s are the South, (232 (1977) the Cotton v.John W. Eshelman & App.
Sons, 757) (1976) of Code quotation part and its § the lack of dealing stipulation things that such to affect the personal knowledge of the entrant are I not weight admissibility. of the recоrd and not its do question stipulation, which does not countermand requirement foundation be laid. proper itself. prove business record cannot be said Instead, exception the business to the hearsay rule should be trеated like Code 38-711 like requires and any other hearsay exception, with the foundation required first having admissibility. established
58030, 58031. BOOKMART, ADULT INC. v. THE
STATE; and vice versa. Judge. Underwood, (hereafter Bookmart, Adult Inc. appellant) is a corporation operating an adult book store in Fulton