Tonkin-Clark Realty Co. v. Hedges , 24 Idaho 304 ( 1913 )

AILSHIE, C. J.,

Concurring. — For reasons hereafter to be stated, I concur in affirming the judgment in this case, but I am not able to agree with what is said by Mr. Justice Stewart with reference to the telephone conversation which is supposed to have taken place between Tonkin and Clem Hedges and to which weight seems to be attached in affirming this judgment. The property sold in this case was the property of Clem Hedges, and he is the party who is here charged with a commission on the sale. The negotiations, however, were practically all had with J. W. Hedges, and it is claimed that J. W. Hedges was the agent and representative of Clem Hedges, and it is claimed that J. W. Hedges was the agent and representative of Clem Hedges in listing this property and procuring respondent to make the sale.

In speaking of the telephone conversation, Mr. Justice Stewart says: “When Tonkin called over the phone he asked for John Hedges, and the answer was, ‘This is Clem Hedges.’ This admission of Clem Hedges, when considered with the other evidence of the sale, identifies the party talking as Clem Hedges, and was acted upon and recognized thereafter in making the conveyance of defendant’s property to the very parties that the appellant was negotiating with after the property was listed with plaintiff, and the jury were the judges as to whether or not the person talking over the phone was Clem Hedges or J. W. Hedges, notwithstanding Clem Hedges denies the same.” I have no fault to find with the statement that the jury were the judges as to whether or not the person who talked to Tonkin over the phone was Clem Hedges, but I most emphatically dissent from the statement that there was any kind of evidence that the party with whom Tonkin talked was Clem Hedges.

The following is all the material testimony given with reference to this telephone conversation: “Q. Now, Mr. Tonkin, did you have any conversation with Mr. Clem Hedges concerning this transaction on or about that time? A. A little later I did. Q. About what time was that ? A. About, — oh, it must have been about eight or ten days afterward perhaps. Q. Where did this conversation take place ? A. Over the telephone. Q. Did you call Mr. Hedges or did he call you ? A. I called him. Q. Did you recognize Mr. Hedges’ voice? A. He told me who it was. Q. Who did you call for? A. J. W. Q. And Clem Hedges answered the telephone? A. Yes, sir. Q. Will you please state what was said between you and Mr. Clem Hedges on that occasion? A. I called up for J. W. Hedges and it was Clem Hedges that answered, and I. told him about an exchange I had at Hiantha, Missouri. So instead of being John Hedges, Clem Hedges, and he told me over the phone, and I told him what I had. He told me he had nothing at all to do with it, that John was looking after that. That was the first time I knew J. W. Hedges’ name was John. He told me that John was looking after that. Q. Did you have any further conversation at any time with Mr. Clem Hedges? A. No, sir.” On cross-examination, he testified as follows: ‘ ‘ Q. Now, when you called up Mr. Hedges, Clem Hedges, or called up rather J. W. Hedges and got Clem Hedges, did you say that Clem Hedges answered you over the phone? A. No, I couldn’t swear; I didn’t see him. Q. Did you recognize his voice ? A. He told me it was Clem Hedges. Q. Did you recognize his voice? A. I never spoke with him over the phone before. Q. Would you swear the party told you it was Clem Hedges? A. Yes, sir. Q. You are aware of the fact that Mr. Hedges has several sons, are you not ? A. Yes, sir. I don’t know any of them but I understand he has. Q. You will please state just exactly what Mr. Hedges said at that time. A. I called up and I asked if it was J. W. Hedges, and he said, ‘No, it is Clem.’ I says, ‘Mr. Hedges,’ I says, ‘I have a trade for some stuff in Missouri for that 160 acres of yours down there southeast of Meridian.’ And he says, ‘I don’t know anything about it,’ he says, ‘In fact, John is looking after it.’ He did not say ‘In fact’; he says, ‘I don’t know anything about it’; he says, ‘John is looking after that end of it.’ ”

The foregoing is the evidence given by Tonkin with refer-' ence to his telephone conversation with the respondent Clem Hedges. Clem Hedges testified in the ease and denied positively that he had any conversation over the telephone with Tonkin. It will be observed that Tonkin’s telephone call was put in for J. W. Hedges and not for Clem Hedges, and that when he went to talk over the phone he supposed he was talking with J. W. Hedges until the party with whom he was talking advised him that it was not J. W. Hedges but stated that he was talking with Clem. Now, it will be observed from the foregoing testimony that there was not a scintilla of evidence given which identified the party with whom Tonkin talked as being Clem Hedges. The call was put in for J. W. Hedges, and when the call was responded to and Tonkin went to the. phone, he went in reply to his call for J. W. Hedges, and he says that he does not know with whom he talked; he did not recognize the voice, and that the only information he has as to the identity of the party with whom he was talking over the phone is the statement that the party made that it was Clem Hedges that was talking. On the other hand, Clem Hedges comes onto to the witness-stand and swears positively that he never talked with Tonkin and that he was not the party who responded. There is no identification whatever of the party talking in this kind of evidence.

I think the case of Wolfe v. Missouri Pac. Ry. Co., 97 Mo. 473, 10 Am. St. 331, 11 S. W. 49, 3 L. R. A. 539, from which my associate quotes, correctly states the law, but the facts of that case were widely different from this case. The conversation there had was with a business house and the call was put in for the company’s office. There was no question in the case but that the conversation whs had with the business office of the company, and the conversation was concerning business in which the company was interested. The court held that under those circumstances the presumption would arise that the party answering the call was an agent or employee of the house, and had authority to speak for the company concerning the business in which it was engaged.

Mr. Chamberlayne, in his work on the Modern Law of Evidence, vol. 1, see. 794, after quoting from the Wolfe case, makes the following comment: “E converso, where this fact of connection with a party’s office is absent, more conclusive proof of identification and connection with the party to be affected by a telephone conversation may properly be demanded by a presiding judge. Thus, a telephone conversation is inadmissible to establish admissions of one of the parties, where it appears that the witness was not acquainted with the party’s voice, and could not identify it. Such a case would not be controlled by the decisions which relate to communications by telephone from an office in response to communications or inquiries, and to the presumption which arises from the transaction of business of the person in whose control the telephone is.”

Young v. Seattle Transfer Co., 33 Wash. 225, 99 Am. St. 942, 74 Pac. 375, 63 L. R. A. 988, is a leading case on this subject, and is very much more in point on its facts as applied to the present case than the Wolfe case. In the Young case the Washington court analyzes the Wolfe case and points out the distinction between that case and the facts on which they were passing in the Young case, and states what we think to be a very sound rule of law which is applicable here and is as follows:

“When material to the issues, communications through the medium of the telephone may be showm 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.”

As I understand the law, conversations carried on by means of telephone do not differ in their essential characteristics from those carried on verbally between the parties when face to face. The only difference is the medium through which they converse and the fact that they are at such a distance from each other that they could not make themselves heard in the ordinary conversation and by means of the voice alone. Mr. Jones, in his work on Telegraphs and Telephones, secs. 697, 698 and 699, discusses this question, and in see. 698 says: “In order for the rule to hold good, the identity of the person must be shown by the party offering to produce such communication as evidence. This may be done by direct or circumstantial evidence, and it is not necessary that the voice of either person be recognized, but if the identity of the person conversing be shown, this will be sufficient.” I take it that extraneous evidence or facts and circumstances independent of the conversation may be shown to identify the party with whom the conversation was had. The one essential thing always remains, however, and that is that the party with whom the conversation was had must in some way be identified. It is essential to do this where the conversation is carried on verbally between the parties face to face. In the latter ease, however, .the identification is much easier, for the reason that the person seeking to identify the other will, in all likelihood, be able to remember the face and thus establish the identity of the person, while over the telephone he cannot see the party with whom he is talking and must resort to the voice and extraneous means for identification.

In my opinion, there was no identification of Clem Hedges in the present action and no proof that he was the person to whom Tonkin talked over the phone. I do not think the admission of this evidence should call for a reversal of the judgment for the following reason: Independently of this telephone conversation, there were sufficient facts and circumstances submitted to the jury to justify them in concluding that J. "W. Hedges was acting for and as the agent and representative of Clem Hedges in negotiating this sale. On the other hand, the evidence admitted touching this telephone conversation did not prove anything, and certainly could not have been the moving cause for intelligent jurors returning a verdict in favor of the respondent.

For the foregoing reasons, I concur in affirming the judgment.