Opinion
A93A0251.
DECIDED APRIL 5, 1993.
Action on policy. Cobb State Court. Before Judge Adams.
Richard Phillips, for appellant.
Lamberth, Bonapfel, Cifelli, Willson Stokes, Stuart F. Clayton, Jr., for appellee.
National Western Life Insurance Company ("National") instituted suit against Morris, a former general agent, to recover premium advances. Morris counterclaimed, alleging both contract and tort claims. At trial, the trial court directed a verdict for National on Morris' tort counterclaim. The jury returned a verdict of $97,790 for National on the main claim, and in favor of National on Morris' contract counterclaim.
1. In three enumerations of error, Morris challenges the trial court's admission into evidence of computer-generated summaries.
(a) An exception to the hearsay rule is permitted by statute for records satisfying the requirements of OCGA § 24-3-14. Allen v. State, 248 Ga. 676, 680 ( 286 S.E.2d 3) (1982).
(b) Morris' contention that the summaries were not available to him before trial is not considered because the record does not indicate that he sought them or any documents from National in discovery, or that National did not respond. Green v. Sun Trust Banks, 197 Ga. App. 804 (1) ( 399 S.E.2d 712) (1990).
(c) The claim that the summaries were generated for trial and not in the regular course of business is belied by the record. Moreover, although a summary prepared in support of a demand for payment may not qualify as a business record under OCGA § 24-3-14, see generally Gateway Leasing Corp. v. Heath, 168 Ga. App. 858, 860 ( 310 S.E.2d 549) (1983), summarized statements of what records show are admissible if the records themselves are accessible to the court and the parties. Tyner v. Sheriff, 164 Ga. App. 360 (2) ( 297 S.E.2d 114) (1982).
Richardson, an assistant vice president of National, was the custodian of the contract files and commission records. She detailed National's record-keeping practices and showed that all information for the summaries was entered into the computer contemporaneously with the events it recorded, in the regular course of business. Although no reports may actually have been printed contemporaneously, the summaries were "available" because the information was continuously stored in the computer and summaries could have been printed at any time. Thus, a proper foundation was laid. See WGNX, Inc. v. Gorham, 185 Ga. App. 489, 490 (3) ( 364 S.E.2d 621) (1988); Cotton v. John W. Eshelman Sons, 137 Ga. App. 360, 363-365 (3) ( 223 S.E.2d 757) (1976).
2. Morris contends that the court erred in granting National's motion for a directed verdict on his tort counterclaim. The court's reason for doing so was that Morris' evidence at trial was on a cause of action, conversion, he did not plead, include in his statement of the issues to be determined at trial in the pretrial order, or move to add to the pretrial order.
The counterclaim originally consisted of four counts, two in contract, one for tortious interference with contractual relations, and one for libel and slander. The latter count was withdrawn prior to trial. In the section of the pretrial order listing issues for jury determination, the only tort issue identified by Morris was tortious interference with contract. No claim for conversion was alleged either in the counterclaim or in the pretrial order. At trial, the only evidence adduced by Morris supporting his tort claim was directed at showing that National had wrongfully withheld his commissions and converted them to its own use.
OCGA § 9-11-16 (b) provides, in pertinent part, that a pretrial order, "when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice." The preclusion of issues by the pretrial order is within the discretion of the trial court. Echols v. Bridges, 239 Ga. 25, 27 ( 235 S.E.2d 535) (1977). "The Supreme Court addressed this situation in construing former Code Ann. § 81-1014 (which was later adopted almost verbatim as the last paragraph of [former] Code Ann. § 81A-116 [now OCGA § 9-11-16]): `. . . (W)e think that it should be held to be the general rule in this State that if a litigant desires a modification of a pretrial order, application should be made to the trial judge either before or during the trial for such modification. While the trial judge might, under the particular facts of some case, modify the pretrial order without request to prevent manifest injustice, it is difficult to imagine any case where it could be held that the trial judge abused his discretion in failing to modify a pretrial order where there had been no motion for such modification before or during the trial.' [Cits.] Since appellant did not request any modification of the pre-trial order, we find no error in the trial court's adherence thereto." Gilbert v. Meason, 145 Ga. App. 662, 663 (1) ( 244 S.E.2d 601) (1978). The same applies here.
Even if Morris had obtained leave to amend the counterclaim to include conversion, such an action lies only for the withholding of "certain bills or coins" and does not lie on account of a mere failure to pay money due under a contract. Faircloth v. A. L. Williams Assoc., 206 Ga. App. 764 (1) ( 426 S.E.2d 601) (1992); Hodgskin v. Markatron, 185 Ga. App. 750, 751 (1) ( 365 S.E.2d 494) (1988); Cooke v. Bryant, 103 Ga. 727 ( 30 S.E. 435) (1898). Morris claimed only the latter, which cannot constitute conversion. Since his only proof of a tort was in support of his "conversion" claim, a directed verdict was proper.
Judgment affirmed. McMurray, P. J., and Cooper, J., concur.