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

Supreme Court of North Carolina

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

61 S.E.2d 895, 232 N.C. 684, 1950 N.C. LEXIS 603

CourtSupreme Court of North Carolina

DecidedNovember 22, 1950

Docket523

StatusPublished

Cited by18 cases

This text of 61 S.E.2d 895 (Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co., 61 S.E.2d 895, 232 N.C. 684, 1950 N.C. LEXIS 603 (N.C. 1950).

Pincite

Opinion

DeviN, J.

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 personalknowl-edge of a witness, has undergone revision in the light of modern business conditions and methods. Ins. Co. v. R. R., 138 N.C. 42, 50 S.E. 452; *686 Breneman Co. v. Cunningham, 207 N.C. 77, 175 S.E. 829; Chaffee v. U. S., 18 Wallace, 516. Tbe impossibility of producing in court all tbe persons wbo observed, reported and recorded eacb individual transaction gave rise to tbe modification which permits tbe introduction of recorded entries, made in tbe regular course of business, at or near tbe time of tbe transaction involved, and authenticated by a witness wbo is familiar with them and tbe 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 tbe witness may not have made tbe entries and may have bad no personal knowledge of tbe transactions. Flowers v. Spears, 190 N.C. 747, 130 S.E. 710; Peebles v. Idol, 198 N.C. 56 (60), 150 S.E. 665; Supply Co. v. McCurry, 199 N.C. 799 (802), 156 S.E. 91; Edgerton v. Perkins, 200 N.C. 650, 158 S.E. 197; S. v. Shipman, 202 N.C. 518 (525), 163 S.E. 657; S. v. Lippard, 223 N.C. 167 (172), 25 S.E. 2d 594; Stansbury on Evidence, sec. 155; 20 A. M. Jur. 881, 892. See also Branch v. Ayscue, 186 N.C. 219, 119 S.E. 201; S. 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 tbe ease at bar, according to tbe record before us, tbe plaintiff did not introduce tbe original entries made in tbe regular course of business at tbe time tbe transactions occurred, but offered to prove tbe facts about 113 transactions extending over a period of 15 months by a witness wbo was speaking not from personal knowledge but reading from a written statement made for him by a bookkeeper in bis office. The objection to tbe 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 tbe court’s ruling plaintiff might have offered other proof. Morgan v. 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 tbe reasons stated there must be a

New trial.

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DeviN, J.

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 personalknowl-edge of a witness, has undergone revision in the light of modern business conditions and methods. Ins. Co. v. R. R., 138 N.C. 42, 50 S.E. 452; *686 Breneman Co. v. Cunningham, 207 N.C. 77, 175 S.E. 829; Chaffee v. U. S., 18 Wallace, 516. Tbe impossibility of producing in court all tbe persons wbo observed, reported and recorded eacb individual transaction gave rise to tbe modification which permits tbe introduction of recorded entries, made in tbe regular course of business, at or near tbe time of tbe transaction involved, and authenticated by a witness wbo is familiar with them and tbe 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 tbe witness may not have made tbe entries and may have bad no personal knowledge of tbe transactions. Flowers v. Spears, 190 N.C. 747, 130 S.E. 710; Peebles v. Idol, 198 N.C. 56 (60), 150 S.E. 665; Supply Co. v. McCurry, 199 N.C. 799 (802), 156 S.E. 91; Edgerton v. Perkins, 200 N.C. 650, 158 S.E. 197; S. v. Shipman, 202 N.C. 518 (525), 163 S.E. 657; S. v. Lippard, 223 N.C. 167 (172), 25 S.E. 2d 594; Stansbury on Evidence, sec. 155; 20 A. M. Jur. 881, 892. See also Branch v. Ayscue, 186 N.C. 219, 119 S.E. 201; S. 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 tbe ease at bar, according to tbe record before us, tbe plaintiff did not introduce tbe original entries made in tbe regular course of business at tbe time tbe transactions occurred, but offered to prove tbe facts about 113 transactions extending over a period of 15 months by a witness wbo was speaking not from personal knowledge but reading from a written statement made for him by a bookkeeper in bis office. The objection to tbe 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 tbe court’s ruling plaintiff might have offered other proof. Morgan v. 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 tbe reasons stated there must be a

New trial.

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61 S.E.2d 895, 232 N.C. 684, 1950 N.C. LEXIS 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dairy-ice-cream-supply-co-v-gastonia-ice-cream-co-nc-1950.

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