79 Ind. App. 218 | Ind. Ct. App. | 1921
Lead Opinion
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 be
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.”
Rehearing
On Petition for Rehearing.
The case of Dunham v. McMichael (1906), 214 Pa. 485, 63 Atl. 1007, relied upon by appellants in their brief on rehearing is easily distinguished from the instant case. In that case the plaintiff’s son attempted to testify concerning a telephone conversation between his mother and the defendant. He was unable to identify the defendant. The plaintiff was an incompetent witness because of the fact that the matters in controversy involved her husband, and she was not permitted to testify as to the telephone conversation nor as to the person with whom she conversed over the phone. There was therefore no identification of the person conversing with the plaintiff.
In the instant case appellee testified as to the conversation and as to the person with whom she was talking which was a sufficient identification of the party talking to justify the admission of the mother’s testimony as to such part of the conversation as she heard. We have examined other cases cited by appellants in their brief on rehearing and they are as readily distinguished from the instant case as Dunham v. McMichael, supra. We do not need to discuss them.
The petition for rehearing is overruled.