Greenberg v. Greenberg , 79 Ind. App. 218 ( 1921 )

Nichols, J.

This is an action by appellee against appellants for damages for the alienation of the affections of her husband who was the son of appellants.

There was a trial by a jury which resulted in a verdict for appellee for $3,000 upon which judgment was rendered in favor of appellee.

The only error assigned is the court’s action in overruling appellants’ motion for a new trial. Appellants contend that the court should have sustained their motion because of the error of the court in permitting witness Mina Drake, who was the mother of appellee, to testify to an alleged conversation over the telephone between appellee and appellant Ada Greenberg, to which appellants objected on the ground that it had not been, shown that the witness knew Ada Greenberg, and that she had not been identified with the alleged conversation.

1. Mrs. Drake testified that she heard her daughter, appellee, call Mrs. Greenberg by name over the telephone, and that during the conversation between them, she listened to a part of it, her daughter holding the receiver so that both could hear. Appellee

testified that at her husband’s request she called Mrs. Greenberg over the phone and talked with her, and that during the conversation her mother, Mrs. Drake, put her ear to the telephone, “and every little bit she would come back and listen during the conversation.” This was sufficient identification 'to justify the admission of the testimony. The question of its weight was one of fact for the jury. Appellants have cited Hancock v. Hartford Fire Ins. Co. (1913), 81 Misc. Rep. 159, 142 N. Y. Supp. 352, but the case is not helpful to them.It was there held that the trial court erred in excluding the testimony of one employe of the defendant as to what he heard another employe say over the phone to the plaintiff, the court saying: “The testimony, however, of the first employe as to the telephone conversation was admitted, and we must therefore assume that the trial justice has held that this employe sufficiently identified the plaintiff to make the conversation admissible.”

2. The case of Kent v. Cobb (1913), 24 Colo. App. 264, 271, 133 Pac. 424, 427, states the rule to be that — “A telephone conversation between the parties, and upon the subject-matter of the litigation, having been testified to by one of the parties, may also be testified to by a by-stander, so far as he heard it.” The rule should be the same whether the witness testifies to the part of the conversation which he heard from the party in his presence, or to the part which he heard over the telephone from the party at the other end of the line. Other authorities in point are: Jamaica Pond Garage v. Woodside Motor Livery (1920), 236 Mass. 541, 128 N. E. 881; McCarty v. Peach (1904), 186 Mass. 67, 70 N. E. 1029, 1 Ann. Cas. 801; Miles v. Andrews (1894), 153 Ill. 262, 267, 38 N. E. 644; Galt v. Woliver (1902), 103 Ill. App. 71. No other question is presented. The judgment is affirmed.