*1
98) (1984);
Alvin Drolet, Deborah Attorney, J. Slaton, Joseph District R. Lewis Weathers, Attorneys, Assistant District Andrew A. Espy, W. appellee. AUTOMOBILE INSURANCE FARM MUTUAL
71016. STATE v. HARRIS et al. COMPANY Birdsong, Presiding Judge. against Bobby Taylor (appellee)
Gerry (appellee) Harris filed suit damages of an automobile collision. seeking to recover as the result insurer, Farm Automo- appellant State Mutual called his (State Farm), the tort suit Company to defend bile Insurance declaratory judg- response was to him. State Farm’s action, Taylor’s policy been adjudication ment seeking colli- premium prior to automobile canceled for involving subsequently moved sion Harris. State affidavits its motion the submission of two judgment, supporting him Taylor informing with the issue of notice mail to which dealt Attached as an exhibit to one of policy. the cancellation of of cancella- copy affidavits was a the written notice State Farm’s Taylor. an ex- to Attached as tion which was addressed and mailed copy of a PORS con- hibit to the other affidavit was a Farm later filed “amended” taining Taylor’s name and address. State which the affiants corrected certain affidavits Copies of original affidavits. the cancel- appeared which had their to these lation notice and the PORS list were likewise attached “amended” motion, Taylor affida-
In filed own opposition State Farm’s vit, stating that he had not received written notice evidence, court denied State policy. On this the trial motion, ap- its order for immediate review. but certified State interlocutory granted. plication appeal to this for an grant of the trial court Farm enumerates as error the failure of fact disputed no issues asserting there were of insurance establishing that notice Held: upon Taylor prior been served to the accident. that Maddox Allstate Ins. Farm contends In authority in the instant case. controlling
Maddox, no by way insurer of affidavit a “presented ‘PORS’ along list on tice to [the insured] *2 appeared. ‘The list insured’s name and which [the address] by receipt was authorities to indicate letters . . . persons appearing addressed to those list. [T]his [cit.], within mailing” “constituted the Post Office for the the contemplation Consequently, of ‘whether [OCGA § 33-24-44].’ [Cit.] notice legally of cancellation had in fact been received ... irrele preclude summary judgment.’ vant and is not an issue which would Maddox v. Allstate Ins. at 22. (amended) One of two in support the affidavits offered of State part motion for “2. As of reflects: Operations duties as he Superintendent with State Farm [Sandifer’s] policies involved in the of non-payment pre- cancellation of personal mium and has policy- of communications with holders on such All matters. 3. herein referred [records] under my custody are control and the records are true and cor- rect and ordinary were made of business. review [A] Bobby Taylor business records of a cancellation [of reflected] notice non-payment premium of was mailed to the insured at last known May address ... on 1983.” (amended)
The other affidavit shows that the “affiant’s duties as postal operator with Farm . . . mailing of cancel- [involved] lation ... non-payment notices for the premium. of cancel- [A] lation non-payment notice for premium was to [Taylor] last known on May address ... 1983.” Included with the can- cellation was notice the PORS List properly stamped the Jackson- ville Post Office and attached to the affidavit as “A.” Exhibit
These two affidavits allow no other op- conclusion than that all superintendent erations responsibility correspondence had the dealing with preparation, mailing filing of pol- icies non-payment premium. He affirmed that he had reviewed all the records pertaining Taylor’s policy; to the he was familiar with those records and those records were made in the business. He also affirmed that records to which he making was reference copies were true and accurate records on which custody He under control. (1) stated two basic facts: mailing That a on May occurred 1983; and, (2) that included notice of cancellation for premium. The affiant affirmatively thus he stated that had ex- amined necessarily business records which had to include (1) List (2) which showed mailing a notice of cancellation. file but on he identify being these documents affiant thus could However, the second mailing affirm that an actual occurred. could not PORS List and notice can- affirm that affiant did superintendent of- operations previously cellation identified post her to office on in fact carried records was ficial business May placed in mail channels. to it as an first affidavit attached it is true that
While and the second only copy the actual notice of cancellation exhibit List, identification only the PORS has as exhibit affidavit affiant limited the facts which each properly each affiant operations superintendent as custodian personal knowledge. identify all documents only file which included could documents notice the cancella- dealing notice, superintendent having itself. mailed the Not Likewise, postal operator could certify mailing. could certify as to the existence nor character documents (and did) custody certify control or but could in fact mailing did occur. say proverbial gnat these strains the
Under *3 a sufficient to establish presented trial court was not with basis records both notice of as the PORS List and Moreover, that no- provides file with State Farm. OCGA 33-24-44 § in mails issuance of deposit tice is the U. S. effective in the appropriate receipt, an that the mail was hands receipt. authorities. constitutes such only requires receipt by the insured of proof statute mailing, Co., Ins. supra. the notice of Maddox v. Allstate Once it was established PORS list admissible in evidence as that record, and the facts business record under facts shown then coverage, show a a notice of cancellation should Farm. We so hold. granted have been to State Banke, Benham, J., Judgment Sognier, Pope, reversed. C. J., JJ., Been, Carley, McMurray, P. disqualified. Judge, dissenting. Carley,
I that agree majority implicit holding with in its purpose correcting “amended” affidavits were admissible for major- I agree in earlier also ity’s OCGA 33-24- principle observation the well established that § “only requires proof mailing, the insured 828) p. agree further that (Majority opinion notice of cancellation.” Co., Allstate Ins. this case must be of Maddox v. resolved basis 84) (1982). However, I concur with cannot from the record majority’s holding unable find is by appellant in this case that of the PORS list submitted and admissible under statute. in Maddox as to the appear there was issue It does not underlying admissibility of the PORS list attached to the affidavit Hill Ins. therein. v. Allstate
370) (1979) decision, in authority in Maddox. The Hill was cited as turn, “compilation pre- list is a specifically recognized that pared containing in course of business [the insurer’s] addresses, names, policyholders of all those numbers As whose mail. to the admissi- policies were to be cancelled list, Buck, bility see Allstate 142) [(1957)].” (Emphasis supplied.) holding This in All- earlier Buck, admissibility supra, state Ins. Co. v. as to the of a PORS list was to the a document would “admissible as a effect such be Act, p. business record under the Business Records Ga. L. ([OCGA 24-3-14]). . . .” (Emphasis supplied.) U. S. Fi- § delity & Guar. the evidence shows that the list in fact was made em-
“[S]ince in ployees regular business, it course of its [the insurer] regular record, was the its make business to such came from the files of the such kept, where records were [insurer] such a business record should admitted evidence under Buck, Allstate Ins. Co. v. supra at 378-379. [OCGA § 24-3-14].” noted, stamped copy there is a of a PORS list bear- ing Taylor’s name and address attached as an exhibit to both original and an “amended” affidavit submitted State Farm. How- ever, neither sufficiently of those affidavits identifies the attached document as a business record pursuant so to render it admissible “ ‘Preliminary proof OCGA 24-3-14. necessary before the writ- rule). ing (to or record is exception admissible under this The evidence should writing include identification record a witness who is familiar with of keeping the method records and who testify can thereto and to facts entry which show that was made regular regular course of business that it was *4 the business to make such memorandum record at the time of the event or within a sup- (Emphasis reasonable time thereafter.’ [Cits.]” plied.) 638, (255 107) (1979). Collins, 149 App. Ga. 640 SE2d As mere hearsay, purported PORS list case would probative have no preliminary proof required value. “Absent 24-3-14], the affiant’s statements as to [OCGA § personally of which kept by he obtained from records not him, hearsay v. probative and had no Thomasson value. [Cits.]” Bank, 556, (254 881) (1979). Trust App. Co. 149 Ga. 559 SE2d This is true even specific the absence to State Farm affida- objection vits. “The absence of objection probative does not increase value 830 (195 849, Ga. Gallman evidence.” 187) presumed it is “that (1973). summary On
SE2d it.” disregarded inadmissible evidence recognized trial 156) Church, 22, (303 SE2d Baptist v. Bible Spell be- (1983). document to consider are thus unable “We PORS] [the Carlos Jones as evidence. not be admissible cause would [Cit.]” 458) (1984). FDIC, 899, Constr. posture, all that can evidentiary existing under its Accordingly, produced has is that State Farm the instant case be said about but, Taylor Mr. unlike sent to written notice that 22, pro- v. Allstate Ins. at State Farm Maddox supra an admissible Post Office for duced contemplation of 33-24-44].’ “within [Cit.]” “[W]hen [OCGA statute must company, language the insurance utilized Guess, Co. Indem. Travelers strictly construed. 559, showing, Guess v. Compare receiving denies record, it Travelers, is clear that State supra. Under this state of Travelers generally See judgment. entitled to Guess, Corp. Invest. fn. Lumbermen’s Indem. Co. v. v. American Modern Home
(1981). denying not err in believe that the trial court did therefore, I respectfully Farm’s motion dissent. Presiding Judge joins Deen authorized to state that January 31, 1986
Rehearing denied Turner, Jr., A. William Dillard, Harkleroad, Hayes, Terry A.
Roy Dewey E. N. appellees. al.; et vice versa. 71008. WALKER et al. v. WILLIAMS Judge. Trust,
Plaintiffs, Exchange Wellington-Quesnoy trustees of Inc., Taylor, brought present & ac- and real estate broker Chase son, and her against apartment complex owner Brenda Williams Williams, for the sale of agent, breach of contract Stephen that, alternatively if complex. apartment complaint alleges unauthorized, Stephen Williams the contract valid