dissenting:
I respectfully dissent from the majority decision reversing the judgment for defendant and finding that plaintiff’s evidence demands such weight that the trial court, sitting without a jury, was required to find in plaintiff’s favor. I believe the evidence sufficiently supports the trier of fact’s findings, and I would affirm its judgment for defendant.
The trial court found that the documentary evidence offered by plaintiff was insufficient to meet plaintiff’s burden of proof. The effect of documentary evidence is controlled by the nature of the document and the facts stated therein. The weight of documentary evidence varies with the reliability of documents and their pertinence to the issues under consideration. (See Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 469 N.E.2d 183; In re Estate of Conrad (1969), 117 Ill. App. 2d 29, 254 N.E.2d 123.) Private business records are not conclusive, but are only prima facie evidence of the facts stated therein. (See Almgren v. Engelland (1981), 94 Ill. App. 3d 475, 418 N.E.2d 1060.) Such records are subject to explanation or contradiction. See Rosee v. Board of Trade (1976), 43 Ill. App. 3d 203, 356 N.E.2d 1012, cert. denied (1977), 434 U.S. 837, 54 L. Ed. 2d 99, 98 S. Ct. 127; Rude v. Seibert (1959), 22 Ill. App. 2d 477, 161 N.E.2d 39.
In finding for defendant, the trial court first emphasized that “plaintiff was unable to produce in court any of the notices of rejection of coupons from any manufacturer, and relied upon its own computer tabulations and records.” The majority attacks this reasoning by citing an often misstated principle that an adverse “presumption” arises where a party fails to produce evidence within his control. Failure to produce available evidence which the party would reasonably be expected to produce in support of his position permits the trial court to infer that the evidence, if produced, would be unfavorable to him. (See E. Cleary & M. Graham, Handbook of Illinois Evidence §302.2, at 73, §302.6, at 85 (4th ed. 1984), citing Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971), and noting terminology error in Berlinger’s, Inc. v. Beef’s Finest, Inc. (1978), 57 Ill. App. 3d 319, 372 N.E.2d 1043.) Thus, the nonproduction here actually raises an inference, not a presumption.
A presumption is a rule of law for the handling of evidence; but an inference involves the actual weight of evidence by the trier of fact, to which a reviewing court must generally defer. (See Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128.) In the present case, the trier of fact was not compelled to, but could, infer that the debit memos would be unfavorable to plaintiff. It was at liberty to accept or reject the inference. The trial court was functioning as a trier of fact when it relied on this inference and was not merely applying a rule of law compelling a presumption. On review, therefore, we may not simply disregard its finding regarding the weight of the evidence.
In regard to whether the finding that the computer documents failed to prove that a debt was owed, the trial court was entitled to rely on evidence which highlighted the absence of reliability of those records.
Pharr testified that the manufacturers’ notifications of rejects were stored in a warehouse, and that all she brought to trial was the computer printout, and no evidence from the manufacturers. She had no reasonable explanation for her failure to bring the manufacturers’ rejects.
One significant difference between the manufacturers’ debit •memos and plaintiff’s computer-generated records involved a notation of the basis for a manufacturer’s coupon rejection. According to plaintiff’s computer printouts, the coupons could be rejected for numerous reasons.
She testified that defendant’s coupons were rejected because the debit memos indicated to her the manufacturers were auditing defendant’s store. She admitted, however, that at trial she only had plaintiff’s computer records, and did not have anything from the manufacturers with their designation as to the basis for rejection. Moreover, Pharr incorrectly refers to “category six” designations as rejections based on “audits.” The category labelled by plaintiff as' “other— audit/reason not given,” actually includes every possible remaining basis of rejection not set forth in the first five categories. Plaintiff’§ production of the original debit notes from the manufacturers would have circumvented the problem of determining whether, e.g., the coupons were rejected due to plaintiff’s own errors or negligence.
The majority relies on the rule that “adverse presumption arising from the nonproduction of available evidence depends on the lack of a reasonable excuse for such nonproduction.” (164 Ill. App. 3d at 755.) The majority asserts two excuses as reasonable explanations of plaintiff’s failure to produce the original documents.
First, plaintiff had no time, after being advised of the trial date, to obtain the debit memos to bring from Texas to Chicago.
Plaintiff filed the action on May 24, 1985, and conducted discovery throughout that year. On July 31, 1986, the trial began. In view of plaintiff’s activity in this case over a two-year period, including setting an earlier trial date and obtaining a default judgment, it makes little sense to find that plaintiff was caught unaware and could not arrange to bring the key records. Moreover, Pharr testified that she found time to prepare documents for the purposes of producing them at trial. The computer-generated documentation was reproduced solely for the purposes of trial.
Second, the majority makes much of the fact that the computer ' records reflected 13,504 rejected coupons, apparently implying that it would be difficult to bring such voluminous records to the courtroom. The coupons themselves, however, were not being sought. The manufacturers do not even return the coupons to plaintiff. Instead, the documents sought were the original debit memos, which do not involve 13,000 pieces of paper. On cross-examination, Pharr offered varying descriptions of the debit memos. She first stated that the memos “are hundreds of pages long” but later conceded that a one-page memo might have hundreds of entries on it. Thus, it was possible to have all of the information on a one-page debit memo.
The majority acknowledges that evidence should be viewed with distrust where stronger and more satisfactory evidence is available. Significantly, the majority concedes that “plaintiff’s chargeback sheets were to be viewed with distrust, as weaker and less satisfactory evidence than the original rejection notices.” (164 Ill. App. 3d at 756.) The majority then reasons that the “weaker and less satisfactory” character of the evidence did “not mean that [the computer records] were to be completely disregarded by the trial court.” (164 Ill. App. 3d at 756.) The records “should not have been disregarded, even if the trial court saw fit to give little credence to same.” Testimony and argument regarding the computer records consumed almost the entire trial. The record does not indicate that the court “completely disregarded” the computer chargeback sheets. The court, therefore, was free to apply the general rule that the computer records could be viewed with distrust where stronger and more satisfactory evidence, the original debit memos, was available.
The majority finds there was “nothing improbable” about plaintiff’s evidence of defendant’s debt. (164 Ill. App. 3d at 755.) Similarly plaintiff argues that “[a]t best, defepdant was only able to raise innuendos that plaintiff’s computer documents were not accurate.” But the law demands nothing more of defendant. The burden of proof on an issue rests on the party who asserts the fact as an element of his claim; and the burden of producing evidence is initially on that party. Behnke v. President & Board of Trustees (1937), 366 Ill. 516, 9 N.E.2d 232.
The majority erroneously reasons that merely because the trial court admitted plaintiff’s business records into evidence, in part finding them trustworthy, the trial court “was bound to give them some weight.” (164 Ill. App. 3d at 754.) The admission of computer-generated business records necessarily includes a finding that the sources of information, method and time of preparation indicated trustworthiness. 107 Ill. 2d R. 236.
The mere admission of a business record, however, in no way determines the weight to which the record is entitled. It is always the privilege of the opponent to attack the record’s reliability by any testimony, cross-examination, or other evidence tending to show its inaccuracy. (Rude v. Seibert (1959), 22 Ill. App. 2d 477, 161 N.E.2d 39.) In this case, it was not until cross-examination of Pharr that' defendant was able to establish facts which challenged the value of the computer records.
The majority argues, without any supporting reasoning, that “[wjhatever weight the trial court ultimately assigned” to the business records, the weight “would and should have been sufficient to prove by a preponderance of the evidence that” the manufacturers had rejected the amount and number of coupons reflected in the records. (164 Ill. App. 3d at 754.) In a related argument, the majority finds “that defendant did not contradict [the business records] in any substantial manner.” (164 Ill. App. 3d at 755.) A close review of the record reveals numerous deficiencies in plaintiff’s proof upon which the trial court could rely in entering judgment for defendant.
One aspect of plaintiff’s record keeping was explored on cross-examination of Pharr. A letter from plaintiff to defendant reported that his balance due was $142.36, and his deposit had been reduced in the amount of $4,414.81. Plaintiff’s form letter is not dated, is not signed, and merely says “Dear Customer,” with no name, address, or account number identifying a customer. Pharr was asked why there were no dates on the letters. She replied, “I have no idea. There should be.” Pharr then attempted to explain why the $142.36 was not also deducted from the $6,000 deposit, along with the $4,414.81. She concluded, “It’s very complicated,” and related to the date in which the information was put into the computer.
Pharr also attempted to explain why one of plaintiff’s exhibits, entitled “Deposit.Input” and dated January 6, 1984, shows that defendant’s deposit was reduced by $4,414.81, and the balance of the $6,000 deposit was $1,585.19. An April 23, 1984, “Deposit Input” shows that the $1,585.19 deposit was reduced by $1,585.11, leaving a balance of 8 cents. A balance sheet introduced by plaintiff indicates similar amounts. Pharr was questioned about the $4,459 plus costs which plaintiff seeks in this suit, and the fact that the same approximate figure had already been deducted from defendant’s deposit. Pharr denied any error or duplication.
The majority, however, states that “[t]he simple truth is that plaintiff adequately explained its computerized chargeback sheets.” (164 Ill. App. 3d at 755.) My reading of the record indicates the contrary.
In finding for defendant, the trial court also relied on “evidence in plaintiffs exhibits that there was a transferring of deficit or debit amounts between account No. 35988, which is the account number involved in this suit of this defendant, and a different account entirely, namely No. 30440.” Under these transfer orders, apparently $3,196.78 of rejects in March and $1,076.22 of rejects in April were transferred over to defendant’s account. The majority finds that the trial court erred in relying on these unexplained transfers. “[T]he possible transfer of deficit amounts to defendant’s account from an unrelated account revealed by three entires in plaintiff’s group exhibit did not require the conclusion that plaintiff did not prove by a preponderance of the evidence that defendant owed it the amount claimed.” (164 Ill. App. 3d at 756.) Nevertheless, I believe the trial court was entitled to consider this unexplained inconsistency or error in the records. While a business record, such as a bill, is admissible as prima facie evidence of the fact stated thereon, the record itself must be regular and there must be nothing to cast suspicion on the transaction. Morrissey v. Ward (1972), 9 Ill. App. 3d 241, 292 N.E.2d 110 (abstract of opinion).
The trial court also relied on “further evidence that a different store operator took over the store in question” after October 1983. The majority states that defendant’s testimony “that he sold the store in January 1984 and his failure to disclaim responsibility for the rejected coupons because he was not operating the store when they were sent to plaintiff settled any doubt as to when he stopped operating it.” (164 Ill. App. 3d at 756.) The majority relies upon McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 455 N.E.2d 103, where the court held that exhibits attached to a complaint negate conflicting allegations only if they are the documents upon which the claim is founded, and not if they are merely evidentiary in nature and not the instrument sued upon.
The majority “recognize[s] that McCormick involved a context and issue different from those involved here.” (164 Ill. App. 3d at 756.) Nevertheless, it inexplicably relies on McCormick in an argument contrary to its other findings. The majority bases its holding on reasoning that the trial court erred in completely disregarding the computer sheets, which deserve such great weight that the court was compelled to enter judgment in favor of plaintiff. Then, it suddenly reasons, perhaps in the alternative, that the trial court erred in relying on the same computer documents because the documents were merely evidentiary in nature, not the instruments sued upon, and thus not conclusive evidence that the facts were contrary to plaintiff’s aliegallons. I cannot agree with the majority reasoning to rely on all parts of the computer records except for the “merely three evidentiary items which cast some doubt on plaintiff’s case.” 164 Ill. App. 3d at 757.
Finally, I note that Pharr repeatedly testified that defendant’s coupons were rejected because of audits of his store. She stated that in audits, manufacturers actually enter and review the store, and give the owner a questionnaire. After defendant testified that he did not recall ever being audited by anyone regarding coupons, on rebuttal Pharr modified her testimony and stated that an audit might involve only driving by the store and taking a photograph of its exterior.
I would hold that the judgment of the trial court in favor of defendant is amply supported by the evidence and should be affirmed.