Mastan Company v. American Custom Homes, Inc.

214 So. 2d 103, 1968 Fla. App. LEXIS 4951
CourtDistrict Court of Appeal of Florida
DecidedSeptember 11, 1968
Docket68-17
StatusPublished
Cited by14 cases

This text of 214 So. 2d 103 (Mastan Company v. American Custom Homes, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mastan Company v. American Custom Homes, Inc., 214 So. 2d 103, 1968 Fla. App. LEXIS 4951 (Fla. Ct. App. 1968).

Opinion

214 So.2d 103 (1968)

The MASTAN COMPANY, Inc., Appellant,
v.
AMERICAN CUSTOM HOMES, INC., Appellee.

No. 68-17.

District Court of Appeal of Florida. Second District.

September 11, 1968.

Dennis J. Slater, Tampa, and Charles E. Miller, of Fowler, White, Collins, Gillen, Humkey & Trenam, St. Petersburg, for appellant.

L.C. Schowe, of Riley, Davis & Schowe, St. Petersburg, for appellee.

ALLEN, Judge.

The appellant, plaintiff below, appeals from the final judgment of the court below sitting without a jury. Appellee here was the defendant below.

In 1966 a suit was instituted by The Mastan Company, Inc. against American Custom Homes, Inc., to collect certain delinquent accounts owed by the appellee. The debt had been assigned to appellant, The Mastan Company, Inc., by the ABC Window Company of Tampa, Inc.

At the trial of this suit appellant had attempted to introduce certain business records pertaining to the debt through a witness, Mrs. Fulford. The appellee objected to Mrs. Fulford's testimony on the grounds that she was not the official custodian of the records and that she did not make the entries into the records. The trial court sustained appellee's objection and judgment was subsequently awarded to appellee.

*104 The appellant makes this point on appeal:

"Whether or not the court erred in sustaining defendant's objection to the introduction of certain business records by the plaintiff."

The appellee states its point in this manner:

"Whether one of three employee bookkeepers, who is neither the custodian, the supervisor, nor the employee who made all the bookkeeping entries, is qualified to lay a proper foundation for admission into evidence of business records under Florida Statute 92.36 [F.S.A.] Uniform Business Records as Evidence Act."

Section 92.36(2), Fla.Stats., F.S.A. states:

"A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."

Section 92.36(2) in effect provides that business records may be introduced in evidence if the custodian or other qualified witness testifies to their identity and the mode of their preparation, if they were made in the regular course of business at or near the time of the act, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify their admission.

The court, in this case, held that the records were not admissible.

Mrs. Fulford, one of the bookkeepers for appellant, as stated in the brief of appellee:

"* * * may have qualified the identity of the bookkeeping records, the mode of preparation and that they were made in the regular course of business at or near the time of the act, condition or event. But, Defendant-Appellee takes the position that Mrs. Fulford did not qualify herself within the ambit as `custdian or other qualified witness.' Why? First, she was one of three bookkeepers who did the posting and did not have personal knowledge of all the bookkeeping entries. Second, she was not the custodian of records. Third, it was not her responsibility to supervise keeping of the records for the purpose of maintaining accuracy and completeness."

The brief then continues as follows:

"Since Mrs. Fulford could not qualify as the custodian of records nor the bookkeeper who posted these records, the turning point in this appeal centers upon whether Mrs. Fulford comes within the definition of the words `qualified witness' on any other basis under the Uniform Business Records as Evidence Act. If an individual is neither the custodian of records nor the one who posted them what else is there? Defendant-Appellee urges that there is only one category remaining where Mrs. Fulford could qualify. If Mrs. Fulford were the general supervisor, or head bookkeeper, or office manager, she could vouch for the ledger entries and posting of accounts, because the same may be vouched for by the overall head under whose supervision the records are made and who vouches for them. Evans v. Boggs, [35 Tenn. App. 354] 245 S.W.2d 641 (Tenn. 1951)."

We have read the complete record and testimony in this case and we conclude that the lower court was correct in its *105 ruling that the business records were not properly authenticated for introduction in this case.

In Evans v. Boggs, supra, the Tennessee Court of Appeals stated (p. 652):

"Assignments 30 and 31 relate to the testimony of W.W. Crandell who made the audit for complainants. The first ground stated is that C.B. Larde assisted Crandell in making the audit but did not testify as to part he made and that under State ex rel. Stewart v. Follis, 140 Tenn. 513, 205 S.W. 444, where one of several auditors fails to testify as to his part, none of the entire audit is admissible. The record does not support this ground. To the contrary Crandell testified that he himself made the audit and the only thing Larde did was to assist him in compiling the report, a mere clerical task done under Crandell's supervision and checked by him."

Subsequently, the Court stated (p. 652):

"We think the record shows Crandell was a competent bookkeeper and capable of making an audit and that he able of making an audit and that the fact he is not a `certified public accountant' goes only to the weight and not to competency; that since he took his figures from the records of the oil mills and banks, which we have held were properly admitted in evidence, and from documentary evidence of the partnership and from some information obtained from complainants who testified in the case, and from certain admissions in the answer, the compilation of figures composing the audit is not subject to such objection."

Again in Evans v. Boggs, supra, the Court states (p. 650):

"For the same reasons, where the entries are made in the regular course of business by one or more bookkeepers, but under the general supervision of a head bookkeeper or cashier or office manager, it is not necessary to call the one who actually made the ledger entry, because the same may be vouched for by the overall head under whose supervision the records are made and who testifies from personal knowledge. Continental Nat. Bank v. First Nat. Bank, 108 Tenn. 374, 380-381, 68 S.W. 497; 20 Am.Jur. 921, sec. 1069.
"As to (b) supra, counsel for complainant introduced copies of the account books and proved they were correct copies, but in most instances failed to prove the correctness of the originals, although the witnesses were familiar with the books and records and testified as to their having been kept in the regular course of business.
"We think that where a witness is available who has personal knowledge of the correctness, he must testify to same even though they are entries in the regular course. If no witness is available who has personal knowledge of correctness, then upon accounting for the unavailability of such person, proof of the records having been kept in the regular course makes them admissible. Wigmore, 3d ed., secs. 1521, 1554; 20 Am.Jur.

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Bluebook (online)
214 So. 2d 103, 1968 Fla. App. LEXIS 4951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mastan-company-v-american-custom-homes-inc-fladistctapp-1968.