Krueger v. Frazier

Ohio Court of Appeals

Krueger v. Frazier

166 N.E. 151, 31 Ohio App. 28, 6 Ohio Law. Abs. 576, 1928 Ohio App. LEXIS 412

CourtOhio Court of Appeals

DecidedJune 11, 1928

Docket2049

StatusPublished

This text of 166 N.E. 151 (Krueger v. Frazier) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Krueger v. Frazier, 166 N.E. 151, 31 Ohio App. 28, 6 Ohio Law. Abs. 576, 1928 Ohio App. LEXIS 412 (Ohio Ct. App. 1928).

Pincite

Opinion

RICHARDS, J.

The ordinary and usual matters for entry in an account book are goods sold and delivered and services rendered, and these three items properly come under that description. The remaining seven items, amount to $1125.00, one item being for $30.00, two for $60.00 each, two for $150.00 each, one for $28.50' and one for $390.00. Four of these items are for amounts averred to have been collected by Dr. Mills from patients in payment of services rendered by the plaintiff in nursing and three of the items are averred, to have been for amounts collected by plaintiff from patients and “turned over” to Dr. Mills. Only one item is charged in the book during the year 1918 and that is for $390.00 collected by Dr. Mills for services rendered by the plaintiff in nursing, and the book contains no item in either of the years 1919 or 1920. While the plaintiff testifies that she made the various entries at the times of the respective transactions, it is apparent that this could' not be true as to some of them, and as to most of those items the entries are manifestly the record of past transactions and not made contemporaneously with the transactions. The entries for four items collected by Dr. Mills from patients and for three items collected by the plaintiff and delivered to Dr. Mills for safekeeping, varying in amount from $30.00 to $390.00 and extending over a period of nearly six years, were not made under such circumstances as to render the book admissible in evidence and do not appear to have been in the usual course of business and those items were not the proper subject of a book account.

It has frequently been held that cash items, especially large amounts, unless perhaps in the banking business or something of that sort, are not the subject matter of an account. Kennedy vs. Dodge, Admr., 19 O. C. C., 425. This is in line with the decision of this court in Wor-land vs. McGill, 32 Court of Appeals Opinions, Sixth District unreported, p. 401, in which it was held that items of cash lost in gambling were not the proper subjects of a book account. The trial court erred in admitting the book in evidence to prove the items of cash.

At the request of counsel for plaintiff the trial judge instructed the jury before argument as follows:

“The jury is instructed that if you find any of Mrs. Frazier’s money was turned over to Dr. Mills for safekeeping, as claimed by her, then the burden of proof is cast upon the defendants to show hy a fair preponderance of the evidence that the money so received by Dr. Mills was repaid or accounted for by him.”

*577 This was manifestly an incorrect statement of the law. There are no degrees of preponderance and a mere preponderance of the evidence is sufficient. This instruction cast an undue burden on the defendants, particularly in view of the fact that they were executors of a decedent and were deprived of the benefit of his testimony. Travelers Insurance Co. vs. Rosch, 3 C. C., N. S., 156; Cincinnati Traction Co. vs. Ruthmen, 15 C. C., N. S., 191, 192. Furthermore, the answer does not plead payment.

It is urged that although the trial court may have erred in admitting the account book in evidence, yet the judgment should not be reversed because other evidence was offered tending to sustain a recovery. The record does disclose some other evidence relating to some of the items on which the action is based, but it is manifest from the entire record that the verdict which was rendered could not have been rendered except for the evidence furnished by the so-called book account.

For the reasons given the judgment will be reversed and the cause remanded for a new trial. _

_ (Williams and Llloyd, JJ., concur.)

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RICHARDS, J.

The ordinary and usual matters for entry in an account book are goods sold and delivered and services rendered, and these three items properly come under that description. The remaining seven items, amount to $1125.00, one item being for $30.00, two for $60.00 each, two for $150.00 each, one for $28.50' and one for $390.00. Four of these items are for amounts averred to have been collected by Dr. Mills from patients in payment of services rendered by the plaintiff in nursing and three of the items are averred, to have been for amounts collected by plaintiff from patients and “turned over” to Dr. Mills. Only one item is charged in the book during the year 1918 and that is for $390.00 collected by Dr. Mills for services rendered by the plaintiff in nursing, and the book contains no item in either of the years 1919 or 1920. While the plaintiff testifies that she made the various entries at the times of the respective transactions, it is apparent that this could' not be true as to some of them, and as to most of those items the entries are manifestly the record of past transactions and not made contemporaneously with the transactions. The entries for four items collected by Dr. Mills from patients and for three items collected by the plaintiff and delivered to Dr. Mills for safekeeping, varying in amount from $30.00 to $390.00 and extending over a period of nearly six years, were not made under such circumstances as to render the book admissible in evidence and do not appear to have been in the usual course of business and those items were not the proper subject of a book account.

It has frequently been held that cash items, especially large amounts, unless perhaps in the banking business or something of that sort, are not the subject matter of an account. Kennedy vs. Dodge, Admr., 19 O. C. C., 425. This is in line with the decision of this court in Wor-land vs. McGill, 32 Court of Appeals Opinions, Sixth District unreported, p. 401, in which it was held that items of cash lost in gambling were not the proper subjects of a book account. The trial court erred in admitting the book in evidence to prove the items of cash.

At the request of counsel for plaintiff the trial judge instructed the jury before argument as follows:

“The jury is instructed that if you find any of Mrs. Frazier’s money was turned over to Dr. Mills for safekeeping, as claimed by her, then the burden of proof is cast upon the defendants to show hy a fair preponderance of the evidence that the money so received by Dr. Mills was repaid or accounted for by him.”

*577 This was manifestly an incorrect statement of the law. There are no degrees of preponderance and a mere preponderance of the evidence is sufficient. This instruction cast an undue burden on the defendants, particularly in view of the fact that they were executors of a decedent and were deprived of the benefit of his testimony. Travelers Insurance Co. vs. Rosch, 3 C. C., N. S., 156; Cincinnati Traction Co. vs. Ruthmen, 15 C. C., N. S., 191, 192. Furthermore, the answer does not plead payment.

It is urged that although the trial court may have erred in admitting the account book in evidence, yet the judgment should not be reversed because other evidence was offered tending to sustain a recovery. The record does disclose some other evidence relating to some of the items on which the action is based, but it is manifest from the entire record that the verdict which was rendered could not have been rendered except for the evidence furnished by the so-called book account.

For the reasons given the judgment will be reversed and the cause remanded for a new trial. _

_ (Williams and Llloyd, JJ., concur.)

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Bluebook (online)

166 N.E. 151, 31 Ohio App. 28, 6 Ohio Law. Abs. 576, 1928 Ohio App. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krueger-v-frazier-ohioctapp-1928.