Opinion
36816.
DECIDED SEPTEMBER 17, 1957.
Garnishment. Before Judge Calhoun. Muscogee Superior Court. May 20, 1957.
Young Hollis, for plaintiff in error.
J. Robert Elliott, Swinson, Elliott Schloth, Harry Dicus, contra.
Under the Uniform Business Records Act in Code (Ann.) § 38-711, a business firm may introduce in evidence records made in the regular course of its business when it is the regular course of business to make such records, regardless of lack of personal knowledge on the part of the entrant or maker. Under this rule a "P.O.R.S. list" kept by an insurance company is admissible in evidence although on a form furnished by the U.S. Post Office Department, where there is accompanying evidence that such list is one of those regularly made up by the company at the time of sending out cancellation notices, and the form contains a list of nine names and addresses checked off in sequence, shows post office date stamp and prepaid postage in the amount of 27c and is accompanied by a copy of cancellation notice to the judgment debtor whose name and address appears thereon, bearing the same date. The copy of cancellation notice in connection therewith is admissible for the same reason.
DECIDED SEPTEMBER 17, 1957.
The defendant in error Dr. Pepper Bottling Company, after obtaining a judgment against the defendant in error Harry H. Bell for a tort resulting from an automobile collision, garnished the plaintiff in error Allstate Insurance Company in the Superior Court of Muscogee County. The insurance company denied any indebtedness to Bell, but set up that it had issued a policy of automobile liability insurance to Bell dated July 9, 1955, for a yearly premium of $73; that Bell actually made a down payment of $29 and that an additional payment of $22 was due on October 9, 1955; that the payment was never made and on November 4 the policy was cancelled for nonpayment of premium and was accordingly not in force and effect at the time of the collision on November 16. On the trial of this issue the only testimony offered was that of Robert Barge, Jr., an assistant operating manager of the Atlanta office of the insurance company. Relative to the mailing of the cancellation notice he testified substantially as follows: the office procedure regarding mailing of notices is that bills are prepared in duplicate; a first notice is sent out 21 days before the payment is due, and a reminder notice within 7 days of the effective date; the Atlanta office services some 85,000 policy holders; if, after bills are sent out no money is received the ledger cards are sent to a collection clerk who requests the file and obtains a cancellation and reinstatement notice stamped out by the addressograph machine; these items are sent to her; she then checks the file and if nothing appears there to the contrary she fills out the cancellation part of the notice with the amount due, date of handling and cancellation date; she carries the original of this notice to the mail room together with a "P.O.R.S. list" containing the names and addresses of the persons for whom the notices have been prepared which is run at the same time the cancellation notices are run (apparently on the addressograph machine). She checks the notices against the list to see that they conform; a mail clerk then places the notices in window envelopes and again checks them with the list, placing the envelopes in the order in which the name appears on the list; at 4 p. m. daily the prepared list and envelopes are taken to the 10th Street Post Office, Station "C" where they are again checked by a postal clerk; the "P.O.R.S. list" is stamped with the date, station, and amount of postage (3c for each name on the list) and the copy is returned to the insurance company, which, along with copy of the cancellation notice, is placed in its files. The policy contains a provision as follows: "Allstate may cancel this policy by mailing to the named insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period."
The court after refusing to admit the list and copy of cancellation notice in evidence directed a verdict for the plaintiff. The defendant moved for a new trial, assigning error in its special grounds on the exclusion of this evidence and the direction of a verdict. The trial court denied the motion for new trial as amended, and this judgment is assigned as error.
The documentary evidence, if admissible, becomes so by virtue of Code (Ann.) § 38-711 as follows: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event shall be admissible in evidence in proof of said act, transaction, occurrence or event, if the trial judge shall find that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. . . This section shall be liberally interpreted and applied." Under this section invoices were held admissible in Guthrie v. Berrien Products Co., 91 Ga. App. 45 ( 84 S.E.2d 596), delivery slips in Saye v. Athens Lumber Co., 94 Ga. App. 118 ( 93 S.E.2d 806), and circulation accounts in Ferguson v. Atlanta Newspapers, Inc., 93 Ga. App. 622 ( 92 S.E.2d 321), although no person testified to their origin or authenticity other than that they were records kept in the usual course of business. In the Ferguson case it was stated (headnote 4) that while "lack of personal knowledge of the making of a business record on the part of a witness may be shown to affect its weight, such lack of personal knowledge shall not affect its admissibility."
That the copy of cancellation notice and the mailing list were business records of the garnishee is, under the evidence, indisputable. A list of addresses of cancellation notices on like forms provided by the United States Post Office was held admissible in evidence in Dias v. Farm Bureau Mutual Fire Ins. Co. of Columbus, Ohio, 155 Fed. 2d 788 under the provisions of 28 U.S.C.A. § 1732, which is very similar in wording to Code (Ann.) § 38-711. The contention of the plaintiff in garnishment that the list is inadmissible because it is in the form of a receipt from the Post Office Department to Allstate Insurance Company would be tenable only if the list was made by the Post Office employees (none of whom testified) but since the evidence shows that the list in fact was made by the employees of Allstate Insurance Company in the regular course of its business, that it was the regular course of its business to make such record, and that it came from the files of the defendant where such records were kept, it is such a business record as should be admitted in evidence under Code (Ann.) § 38-711. When in evidence, the weight and credit to be given to it, including the circumstances surrounding the making of the record and the lack of personal knowledge on the part of the persons responsible therefor, are matters for the consideration of the jury. Should the jury find from this and other evidence that the defendant had carried the burden of proving that it actually did mail to the named insured, at the address stated on the insurance policy, a written notice of cancellation to be effective not less than ten days thereafter, then, under this provision of the insurance policy above quoted, the jury would find that the cancellation became effective regardless of whether or not the notice was actually received by the insured, for the reason that such a provision in a contract is lawful and must be given effect according to its terms. Genone v. Citizens Ins. Co. of New Jersey, 207 Ga. 83 ( 60 S.E.2d 125). However, direct evidence that a letter was never received is also admissible as a circumstance to show that it was never mailed. Should these circumstances pointing in opposite direction be in evidence, the question of whether or not the letter of cancellation was mailed is one for determination by the jury.
It was accordingly error to refuse to admit the documentary evidence.
The trial court erred in denying the motion for new trial as amended.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.