Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co.

Annotate this Case

61 S.E.2d 895 (1950)

232 N.C. 684


No. 523.

Supreme Court of North Carolina.

November 22, 1950.

*896 Garland & Garland, Gastonia, for defendant-appellant.

Basil L. Whitener, Gastonia, for plaintiff-appellee.

DEVIN, Justice.

The plaintiff undertook to establish the facts upon which it based its action by the testimony of its President who read to the jury from a written statement purporting to show the numerous items constituting plaintiff's claim. It was testified this statement had been made up by a bookkeeper under witness' direction from the records in his office. The witness had no personal knowledge of the shipments of cans of frozen cream, except from the carrier's receipts, or of defendant's failure to return the empty containers, except from the reports placed on his desk. Defendant noted exception to this testimony, and assigns its admission as error.

The rule of evidence formerly observed by the courts limiting proof of items of business transactions to matters within the personal knowledge of a witness, has undergone revision in the light of modern business conditions and methods. *897 Insurance Co. v. Seaboard Air Line R. Co, 138 N.C. 42, 50 S.E. 452; Breneman Co. v. Cunningham, 207 N.C. 77, 175 S.E. 829; Chaffee & Co. v. U. S., 18 Wall., 516, 21 L. Ed. 908. The impossibility of producing in court all the persons who observed, reported and recorded each individual transaction gave rise to the modification which permits the introduction of recorded entries, made in the regular course of business, at or near the time of the transaction involved, and authenticated by a witness who is familiar with them and the method under which they are made. This rule applies to original entries made in books of account in regular course by those engaged in business, when properly identified, though the witness may not have made the entries and may have had no personal knowledge of the transactions. Flowers v. Spears, 190 N.C. 747, 130 S.E. 710; Peebles v. Idol, 198 N.C. 56, 60, 150 S.E. 665; Atlas Supply Co. v. McCurry, 199 N.C. 799, 802, 156 S.E. 91; Edgerton v. Perkins, 200 N.C. 650, 158 S.E. 197; State v. Shipman, 202 N.C. 518, 525, 163 S.E. 657; State v. Lippard, 223 N.C. 167, 172, 25 S.E.2d 594; Stansbury on Evidence, sec. 155; 20 Am.Jur. 881, 892. See also Branch v. Ayscue, 186 N.C. 219, 119 S.E. 201; State v. Breece, 206 N.C. 92, 173 S.E. 9, and Lister v. Lister, 222 N.C. 555, 563, 24 S.E.2d 342.

But in the case at bar, according to the record before us, the plaintiff did not introduce the original entries made in the regular course of business at the time the transactions occurred, but offered to prove the facts about 113 transactions extending over a period of 15 months by a witness who was speaking not from personal knowledge but reading from a written statement made for him by a bookkeeper in his office. The objection to the evidence thus presented should have been sustained.

Though this was the only evidence offered by plaintiff, defendant's motion for judgment of nonsuit cannot be allowed as but for the court's ruling plaintiff might have offered other proof. Morgan v. Royal Benefit Society, 167 N.C. 262, 83 S.E. 479; Midgett v. Nelson, 212 N.C. 41, 192 S.E. 854; Gibbs v. Russ, 223 N.C. 349, 26 S.E.2d 909; Ballard v. Ballard, 230 N.C. 629, 635, 55 S.E.2d 316.

For the reason stated there must be a

New trial.