Carroll v. Parry

Mr. Chief Justice Shepard delivered the opinion of the Court: 1. The fix’st assignxnent of error is on the exception taken to the admission of the testimony concerning the alleged telephone conversation between plaintiff’s father and the office of the defendants. The materiality of this testimony is shown by the following* recital in the bill of exceptions: “In the presentation of the ease to the jury, counsel for the plaintiff ax’gued that the telephone message of Satxxrday, January 6th, 1912, testified to by the witness Eichard Le Eoy Parry, had been sent by the defendants for the purpose of keeping the plaintiff’s relatives in ignorance of his arrest and imprisonment, and to prevent steps to procure his release, by giving bail or otherwise, and in order that the police officials might have an opportunity to obtain a confessioxi from him that he was guilty of the offexxse charged.” This argument was evidently takexx by the jury as showing ex [375] press malice in making the arrest, and was reflected in the verdict, one half of which yas remitted. We think the exception well taken. Young v. Seattle Transfer Co. 33 Wash. 225, 63 L.R.A. 988, 99 Am. St. Rep. 942, 74 Pac. 375; Knickerbocker Ice Co. v. Gardiner Dairy Co. 107 Md. 556, 571, 16 L.R.A.(N.S.) 746, 69 Atl. 405; J. Oberman Brewing Co. v. Adams, 35 Ill. App. 540. The bill of exceptions shows that a call purporting to come from the office of the defendants was answered by plaintiff’s father. The conversation is set out in the foregoing statement. ’There was no identification of the person talking to the witness, and nothing to indicate that it was one of the defendants who called him up. As said in Young v. Seattle Transfer Co. supra: “When material to the issues, communications through the medium of the telephone may be shown in the same manner and with like effect as conversations had between individuals face to face, but the identity of the party sought to be charged with a liability must be established by some testimony, either direct or circumstantial. It is not always necessary that the voice of the party answering, or of either party, for that matter, be recognized by the other in such conversations, but the identity of the person or persons holding the conversation, in order to fix a liability upon them or their principals, must in some manner be shown. To hold parties responsible for answers made by unidentified persons, in response to calls at the telephone from their offices or places of business concerning their affairs, opens the door for fraud and imposition, and establishes a dangerous precedent, which is not sanctioned by any rule of law or principle of ethics of which we are aware. A party relying or acting’ upon a communication of that character takes the risk of establishing the identity of the person conversing with him at the other end of the line.” Cases cited on behalf of the appellee are not in point. Wolfe v. Missouri P. R. Co. 97 Mo. 473, 481, 3 L.R.A. 539, 10 Am. St. Rep. 331, 11 S. W. 49. The question arose incidentally, and it does not appear how the party was called or the circumstances attending the identification. [376] Missouri P. R. Co. v. Heidenheimer, 82 Tex. 201, 27 Am. St. Rep. 861, 17 S. W. 608. .In that case a demand was made upon a railroad office for goods. Party could not tell who it was that answered him. He recognized the voice as one of the employees of the office with whom he had done business before. The question was one simply of demand of goods that had been shipped. General Hospital Soc. v. New Haven Rendering Co. 79 Conn. 581, 583, 118 Am. St. Rep. 173, 9 Ann. Cas. 168. The action in that case was by a hospital society to recover of the rendering company for the treatment of two of its injured employees'in the hospital. Manuel, who was in the plaintiff’s employ and in charge of telephone calls at the hospital, and as agent of the hospital, received a telephone call purporting to be from the defendant company, asking for the despatch of an ambulance for two men who had been severely burned. The court found that the message had in fact been sent from the office of the defendant. The court said: “The fact that a person in the d'efendant’s office, apparently in charge as its representative, told the plaintiff to send an ambulance as testified, is a fact relevant to the issues raised by the pleadings. The defendant, however, did not object to this testimony, and it was received by the court without objection. The witness further testified that he asked who would pay for the treatment of these men, and was informed that the defendant would take care of the expense. The defendant objected to so much of the witness’s testimony as stated the answer to tlie witness’s question as to who would pay for the care of the injured men. The court overruled this objection, and the defendant excepted.” The men were delivered to the hospital society, who sent their ambulance as requested, for the purpose of receiving and treating them. 2. The' second assignment relates to the memorandum entered on the blotter of the police department. It does not appear that this was written by either one of the defendants, and it is a memorandum made in accordance with the duties of the office, showing the names and charges, etc., wffien parties are arrested. [377] The record is inadmissible. Prigg v. Lansburgh, 5 App. D. C. 30, 36; National Union v. Thomas, 10 App. D. C. 277, 292; Snell v. United States, 16 App. D. C. 501, 517. 3. The last assignment of error is on the refusal of the court to give an instruction asked by defendants, stating’ the facts relied on to show probable cause. It is unnecessary to set out this instruction, for the court did not give the jury a charge telling them what facts, if found to be true, would constitute probable cause, but left the question entirely to the jury. When the facts relied on to constitute prohable cause are in dispute, as they were in this case, their existence is for the determination of the jury, but their legal effect, if found to be true, is for the c-onrt. As the case is to be reversed it is unnecessary to elaborate the point. Spitzer v. Friedlander, 14 App. D. C. 556, 562; Slater v. Taylor, 31 App. D. C. 104, 18 L.R.A. (N.S.) 77; United Cigar Stores v. Young, 36 App, D. C. 409; Staples v. Johnson, 25 App. D. C. 155, 160; Mark v. Rich, ante, 182, present term. For the errors pointed out, the judgment will he reversed, with costs, and the cause remanded for a new trial. Reversed. Footnotes [*] Evidence — Telephone Conversation. — For cases passing upon the necessity and sufficiency of identification as a foundation for the admission of a conversation or communication hy telephone, see note to Planters’ Cotton Oil Co. v. Western U. Teleg. Co. 6 L.R.A. (N.S.) Ii®¿.