Myers v. Brown , 74 Ga. App. 534 ( 1946 )

1. In the trial of issues made by a counter-affidavit to dispossessory-warrant proceedings, testimony of the plaintiff that he made demand on the defendant over the telephone before instituting proceedings, though he did not know at that time that the defendant was the person to whom he was speaking, was admissible in evidence as tending to prove the demand in view of further testimony that he talked to the defendant later, face to face, and recognized his voice, and could at the trial identify the defendant as the person to whom he spoke over the telephone when he made the demand.

2. The evidence authorized the verdict.

3. The second special assignment of error will be treated as abandoned.

DECIDED NOVEMBER 26, 1946. James E. Brown sued out a dispossessory warrant against Fulton E. Myers in the Civil Court of Fulton County, alleging that the defendant tenant was holding over and beyond his term, that possession had been demanded and refused, and that the plaintiff had complied with the rent regulations promulgated by the Administrator of the Office of Price Administration. The defendant filed his counter-affidavit, alleging that his term had not expired, that he was not holding over and beyond his term, that the plaintiff had not demanded possession in terms of the statute, and he denied all allegations of the plaintiff's affidavit. Upon a trial of the issues without the intervention of a jury, the court found for the plaintiff. The defendant made an oral motion for a new trial upon the general grounds and upon the following special grounds: that the court erred in admitting the testimony of the plaintiff concerning an oral demand for possession of the premises, made on the defendant over the telephone, without identifying the defendant as the person on whom the demand had been made; and that the court erred in permitting testimony of the defendant in answer to the question as to what the defendant would have done on April 1, 1946, if a demand had been made. The motion for a new trial was overruled and the defendant appealed to the Appellate Division of the trial court where the judgment was affirmed, and the defendant excepted.

The evidence was conflicting upon the question of whether a proper demand had been made upon the tenant for possession of the premises. The plaintiff testified: "On April 1, 1946, I took the telephone number of Fulton E. Myers from the telephone directory, calling that number, asking to speak to Mr. Myers. A woman's voice answered the telephone and I heard her inquire: ``Has Fulton gone to work?' Shortly thereafter a man answered the telephone and responded to may greeting as though he was the said Myers. In the course of the conversation, I demanded possession of the premises, and Myers responded that he would not surrender possession at that time. He told me that he had purchased another house, but that the deal had fallen through on Saturday. I had never talked to Myers over the telephone before and did not recognize his voice. I talked to Mr. Myers in person, however, for approximately half an hour about the middle of June, 1946, and I can say now that the man I talked to over the telephone on April 1 was the same Mr. Myers with whom I talked in the middle of June, 1946. Mr. Shropshire and Mr. Wiggins were in Mr. Wiggins' office with me when I made the call. I drove by the premises about 8:30 on the morning of April 1 and saw a White Provision Company automobile parked in front of said premises. Mr. Myers works for the White Provision Company." Mr. Shropshire and Mr. Wiggins corroborated the plaintiff's testimony and further added that the telephone call was made to Mr. Myers shortly after nine o'clock on April 1. It further appears from the evidence that the defendant was a tenant at will, and that the prerequisite two months' notice had been given the defendant terminating the tenancy as of March 30. The defendant testified: "I did not receive a telephone call from Mr. J. E. Brown on Monday, April 1. I was out of the city on that day. I did not talk to Mr. Brown or anyone else about the premises on Monday, April 1. I did receive a telephone call from some gentleman on Saturday, March 30, who asked me what I was going to do about surrendering possession. I told him that I did not know; that I did not have a place to move. I told him that I had purchased another house, but the deal had fallen through. I am satisfied that the call was not made Monday, April 1, because I left town about 7 o'clock on Monday, April 1, and went to Mableton, Austell, and Villa Rica, and I did not get back home until late that afternoon, and I am positive that I did not talk to anybody about the premises on Monday, April 1. I always use the White Provision Company car when I am travelling on company business. Had a demand been made upon me on Monday, April 1, I would not have surrendered the premises, as I did not have a place to which to move. Mr. Brown did demand possession of me about the middle of June; and I refused to give them up." Several witnesses corroborated the defendant's statement that he was out of the city on Monday, April 1. 1. Generally in this State communications by telephone are not admissible in evidence unless the identity of the party against whom the conversation is sought to be admitted is established by either direct or circumstantial evidence.Planters' Cotton Oil Co. v. Western Union Tel. Co., 126 Ga. 621 (55 S.E. 495, 6 L.R.A. (N.S.) 1180); Stewart v.Fisher, 18 Ga. App. 519 (89 S.E. 1052); Stamps v. FruitDispatch Co., 8 Ga. App. 503 (70 S.E. 84); Goodson v.Adams Grocery Co., 32 Ga. App. 419 (123 S.E. 748);Easterling v. Bell, 29 Ga. App. 465 (116 S.E. 50);Thompson v. Bank of Chatsworth, 30 Ga. App. 443 (8) (118 S.E. 470); Zugar v. Crystal Springs Bleachery, 71 Ga. App. 821,823 (32 S.E.2d 414). See as to the establishment of identity by circumstantial evidence, Ayers v. John B. DanielCo., 35 Ga. App. 511 (133 S.E. 878). The plaintiff in the instant case, however, swore positively that he later talked to the defendant in person following the telephone conversation and recognized his to be the voice of the person with whom he had spoken in regard to surrendering the premises on April 1, and this subsequent acquisition of knowledge of the voice of the defendant was sufficient to permit the introduction in evidence of the telephone conversation, the time of recognition affecting the weight, rather than the competency, of the evidence.

2. The evidence which we have ruled in division 1 of this opinion to be admissible for the purpose of establishing the identity of the person upon whom the demand was made by telephone to surrender the premises, taken together with the positive testimony of the witnesses that this demand was made on April 1, was sufficient to authorize the verdict in favor of the plaintiff.

3. The defendant's second special assignment of error complains that the court erred in permitting counsel for the plaintiff to propound and the defendant to answer the question as to whether or not, if a demand had been made upon him on April 1, he would have surrendered possession of the premises, to which the defendant replied that he would not have done so. This is assigned as error upon the ground that the question called for a conclusion and was opinion evidence as to what would have happened some moths prior to the asking of the question. In his brief, counsel for the defendant does not pursue this assignment of error upon the ground that this was a conclusion and opinion evidence as to what would have happened some months prior to the asking of the question, but changes his position to the ground that this testimony was insufficient to cure the defect in the telephone conversation, because such admission was not made prior to the time that the law requires demand of the tenant, which ground of error was not assigned on the appeal to the Appellate Division of the Civil Court of Fulton County. This assignment as to the admission of the testimony will, therefore, be treated as abandoned.

For the reasons given in divisions 1 and 2 of this opinion, the court did not err in denying the appeal and affirming the judgment of the trial court.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.