Bobbie Brooks, Inc. v. Hyatt
Bobbie Brooks, Inc. v. Hyatt
Opinion of the Court
This is a contract action brought by the plaintiff, Bobbie Brooks, Incorporated, against the defendant, Maurice Hyatt. The District Court directed a verdict for the defendant, and the plaintiff appeals that decision. We reverse the decision of the District Court.
In 1962, the defendant became a sales representative
At trial, the only evidence of the debt which the plaintiff could produce was exhibit 3, the computer record of the defendant’s dealings with Stacy Ames. In attempting to lay a foundation for the introduction of exhibit 3, the plaintiff called as a witness the sample control director of Bobbie Brooks, Inc., Mr. Segal, who testified that he is the custodian of all salesmen’s records, including the records of Stacy Ames’ transactions with the defendant.
Segal testified that until 1970, Stacy Ames handled its own salesmen. In 1970, the Stacy Ames division turned over its records to Segal in the regular course of business. At that time, Segal spoke to the records’ custodian of Stacy Ames concerning the salesmen’s records. Segal testified from personal knowledge as to the method of preparation of the business records of Bobbie Brooks, Inc. He also testified that, prior to 1970 when the record-keeping was centralized, all subsidiaries and divisions of Bobbie Brooks, Inc., used the same system
The District Court sustained the defendant’s objection to the admissibility of exhibit 3. The District Court held that exhibit 3 was inadmissible because Mr. Segal was not the custodian of the records at the time they were originally made. The plaintiff’s sole contention on appeal is that the District Court was in error when it refused to admit exhibit 3 into evidence. We agree.
The Uniform Business Records As Evidence Act, as adopted by Nebraska, provided: “A record of an act, condition, or event, shall, insofar 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.” § 25-12,109, R. S. Supp., 1974. The purpose of this statute was to permit admission of systematically entered records without the necessity of identifying, locating, and producing as witnesses the individuals who made entries in the records in the regular course of the business. See Higgins v. Loup River Public Power Dist., 159 Neb. 549, 68 N. W. 2d 170. It should be noted that the statute gave the trial judge discretion in determining when a sufficient foundation had been
In Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N. W. 2d 871, this court held that computer records fell within the meaning of the statute and were admissible into evidence. The court stated: “The statute was intended to bring the realities of business and professional practice into the courtroom and the statute should not be interpreted narrowly to destroy its obvious usefulness.”
The crucial issue in this case is whether the testimony of Segal, who is the present custodian of the records but was not the custodian at the time the records were originally made, is sufficient to ensure in the words of the statute, that “the sources of information, method, and time of preparation were such as to justify its admission.”
No Nebraska cases have dealt with this issue. In other jurisdictions faced with this question, the business records have been admitted into evidence on the testimony of merely the present custodian. In Rossomanno v. LaClede Cab Co. (Mo.), 328 S. W. 2d 677, the Supreme Court of Missouri held that a doctor’s medical records were admissible, even though the witness who testified concerning the records was not the custodian of the records at the time they were made. The witness, however, was the present custodian of the records. The court said: “If plaintiff’s position is correct, a new employee, even a permanent custodian, would be incompetent to qualify for admission in evidence any records ante-dating his employment regardless of how many years he continued to work because he could never acquire the necessary personal knowledge. * * * We cannot escape the conclusion that a witness may be competent to identify a business record and testify to the mode of its preparation,, even though he was not employed in the ‘business’ at the time the act, condition
What limited authority there is on a subject agrees that the witness need not be the custodian of the records at the time they were made. To hold otherwise would fail to recognize the “realities of business,” and would exclude a great amount of reliable evidence concerning the activities of large business organizations.
In the case at hand, there was sufficient testimony by Segal to ensure that the “sources of information, method, and time of preparation were such as to justify its admission.” Segal testified as to the mode of preparation of the Bobbie Brooks, Inc., records. He based his knowledge of the mode of preparation on: (1) The fact that all subsidiaries and divisions of Bobbie Brooks, Inc., used the same business records system; (2) he personally observed Stacy Ames record procedures in 1967 and 1968; (3) the output of the computer from which he could derive its system of input; and (4) the information transferred to him in a normal course of business by the previous custodian. Thus, Segal possessed sufficient knowledge to testify as to the method of preparation of exhibit 3. Segal testified as to exhibit 3’s identity, as to the method of its preparation, and that the events contained in the record were recorded within 1 week of their occurrence in the regular course of business. His testimony laid a sufficient foundation for the introduction into evidence of exhibit 3.
The judgment of the District Court is reversed and the cause remanded for a new trial in accordance with this opinion.
Reversed and remanded for a new trial,
Dissenting Opinion
dissenting.
I do not believe that the trial judge abused his discretion in determining that insufficient foundation was
Reference
- Full Case Name
- Bobbie Brooks, Incorporated, Appellant, v. Maurice Hyatt, Appellee
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- 8 cases
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- Published