F. & W. Farm Service, Inc. v. Citizens & Southern National Bank

Hall, Judge.

In this action on account against the executor of a decedent’s estate the plaintiff appeals from the judgment denying his motion for summary judgment.

1. Irrespective of questions of the admissibility of other evi

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dence submitted by the plaintiff, the evidence of the charges to the decedent on the plaintiff’s business records which were proved as provided by law (Ga. L. 1952, p. 177; Code Ann. § 38-711), was sufficient to support a judgment in favor of the plaintiff. One In All Corp. v. Fulton Nat. Bank, 108 Ga. App. 142, 144 (132 SE2d 116). Business records of accounts that are admissible under the Georgia Business Records Act, supra, are admissible against a deceased debtor. In re McKeehan’s Estate, 358 Pa. 548 (57 A2d 907); In re Cameron’s Estate, 388 Pa. 25 (130 A2d 173); Botti v. Horton’s Estate, 5 NYS 2d 284 (254 App. Div. 889); Exchange Nat. Bank of Florida v. Hospital & Bd. of Hillsborough County, (Fla.) 181 S2d 9; 5 Wigmore on Evidence (3d Ed.) 407, § 1554; 30 AmJur2d 45, Evidence, § 925.

Submitted October 2, 1967

Decided November 14, 1967

Rehearing denied December 4, 1967.

It is contended that this court is destroying or changing the public policy of this State. On the contrary, we are following the express mandate of the General Assembly. The Act of 1952 (Code Ann. § 38-711, supra) specifically states that “any writing or record . . . made as a memorandum or record of any act, transaction . . . shall be admissible in evidence in proof ... if the trial judge shall find that it was made in 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 . . . or within a reasonable time thereafter” and that “this section shall be liberally interpreted and applied.”

2. The evidence presented by the defendant of declarations of the deceased that he did not owe the charges was inadmissible. Code § 38-301; Higgins v. Trentham, 186 Ga. 264 (197 SE 862); Rabun v. Wynn, 209 Ga. 80 (70 SE2d 745); Gullatt v. Thompson, 57 Ga. App. 669, 674 (196 SE 107).

3. The defendant not having contradicted the plaintiff’s evidence, the trial court erred in denying the plaintiff’s motion for summary judgment. Planters Rural Tel. Coop. v. Chance, 108 Ga. App. 146, 148 (132 SE2d 90).

Judgment reversed.

Bell, P. J., Jordan, P. J., Eberhardt, Pannell, Deen, Quillian and Whitman, JJ., concur. Felton, C. J., dissents.

Carlisle & Chason, Willard H. Chason, for appellant.

Sell & Comer, E. S. Sell, Jr., John D. Comer, for appellee.