Minnich v. First National Bank ( 1979 )

Birdsong, Judge.

Action on account. Appellee, the First National Bank of Atlanta, brought suit on a "smart money” account. Appellant Minnich answered with a general denial. At trial, the bank introduced microfilm copies of the account over objection. Following a non-jury trial, judgment was entered for the bank. Minnich brings this appeal contending that the microfilm copies admitted over objection do not qualify as business records and that once the microfilm records are removed from consideration, an insufficiency of evidence to support the verdict results. Held:

We affirm. The first pertinent fact that presents itself is that we are not dealing with the daily flow of checks or other negotiable documents. The bank offered photocopies of balance statements of money due. These were mailed to Minnich at the end of each month. The bank’s witness testified that the exhibits offered by the bank were microfilm statements of the account of Minnich each month from the billing statement. The only logical reading of this testimony is that each month as the statement of account , was mailed to Minnich a microfilm copy of the original statement was made a part of the normal business records of the bank. The witness had previously testified that the books and records of the bank were kept in the regular course of business and that it was the regular course of business to keep those books and records. The witness identified the documents admitted as photocopies of Minnich’s "smart money account” which had been recorded in the regular course of the bank’s business.

Submitted June 11,1979 — Decided December 4, 1979 —

Contrary to the appellant’s contention that no admissible evidence was offered in support of the indebtedness, we find that the trial court properly admitted evidence of the account balance of Minnich’s account with the bank, in that the evidence admitted was a suitable photocopy of a microfilm of the monthly statement made contemporaneously with the mailing of that statement each month to Minnich. At the very least there was a requisite showing that the microfilm was made within a reasonable time after the preparation of the statement. Whitehead v. Joiner, 234 Ga. 457, 459 (216 SE2d 317).

Code Ann. § 38-711 in part reads as follows: "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.” (Emphasis supplied.) See in this respect Smith v. Bank of the South, 141 Ga. App. 114 (232 SE2d 629); Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360 (223 SE2d 757).

The statute further provides that this section (38-711) be liberally interpreted and applied. See also Wright v. Trust Co. of Ga., 108 Ga. App. 783 (134 SE2d 457) and One In All Corp. v. Fulton Nat. Bank, 108 Ga. App. 142 (132 SE2d 116). There being no viable defense offered to rebut the prima facie case of indebtedness due, the trial court did not err in entering judgment for the bank. See First Nat. Bank v. McClendon, 147 Ga. App. 722, 723 (250 SE2d 175).

Judgment affirmed.

Deen, C. J., Quillian, P. J., McMurray, P. J., Shulman, Banke, Underwood and Carley, JJ., concur. Smith, J., dissents. Rehearing denied December 20, 1979 — M. David Harrison, for appellant. M. Douglas Mann, for appellee.