Appeal, No. 71, April T., 1955, from judgment of Court of Common Pleas of Somerset County, 1952, No. 508 C.D., in case of Midland Credit Company, a corporation, v. Standford White, defendant, and J. E. Herring, trading as J. E. Herring Motor Co., additional defendant. Judgment reversed.
Archibald M. Matthews, for appellant.
Samuel M. Rosenzweig, with him Alexander Ogle, for appellee.
Before Rhodes, P.j., Ross, Gunther, Wright, Woodside, and Ervin, JJ. (hirt, J., absent).
[ 178 Pa. Super. Page 607]
This is the second time this case is before us, on precisely the same legal issue. In Midland Credit Co. v. White, 175 Pa. Superior Ct. 314, 104 A.2d 350, we held that the lower court erred in receiving in evidence testimony concerning telephone conversations in which the caller was not properly identified as the plaintiff; and we awarded a new trial. We regret that we must remand the case once more for retrial, but justice requires it.
[ 178 Pa. Super. Page 608]
This prolonged litigation had its inception in a replevin action instituted by Midland, a finance company, to obtain possession of an automobile leased originally by Stanford White from a dealer, who then assigned the bailment lease to Midland. White, while driving on the Pennsylvania Turnpike, was involved in a collision which resulted in considerable damage to the car. It was removed to appellant Herring's garage for repairs. White then defaulted in his monthly payments to Midland, and it instituted the replevin action. Herring defended, claiming a lien for the repairs, which Midland had refused to pay. At the trial Herring and his employe were allowed, over objection, to testify to certain telephone calls received by them from persons purporting to represent Midland, which calls indicated the finance company's assent to the repairs, with consequent liability on its part for the lien. After verdict for Herring and refusal of Midland's motions for new trial and judgment n.o.v., Midland appealed to this Court. We awarded a new trial because neither Herring nor his employe could identify by voice the persons placing the incoming calls and Herring had produced in evidence no circumstances sufficient to indicate that the caller spoke with authority from Midland.
At the retrial Herring offered to prove such circumstances. The trial court, in its effort to comply with our decision, was overly cautious in restricting his offer of proof and he was not permitted to introduce in evidence the corroborative evidence. A verdict was directed for Midland and, after refusal of his motion for new trial, he has appealed to us.
In the first case (Midland Credit Co. v. White, supra, 175 Pa. Superior Ct. 314, 104 A.2d 350), at pages 318-319, we stated the applicable law: "Here, it will be recalled, the appellee and his employe were the recipients
[ 178 Pa. Super. Page 609]
of the telephone calls. The general rule applicable to such situation is set forth in Burton v. Pacific Mut. Life Ins. Co., 368 Pa. 613, 84 A.2d 310, where, at page 617, the Supreme Court, speaking through Mr. Chief Justice DREW, stated: 'It is now well settled that the recipient of a telephone call may not testify as to the conversation unless the voice of the caller can be identified: Smithers v. Light, 305 Pa. 141, 157 A. 489.'... In the Reach case [Reach v. National Bedding Co., 276 Pa. 467, 120 A. 471], although no objection to the evidence was raised on the ground of lack of identification, Supreme Court stated, at page 471: 'It may, however, not be amiss to point out, that telephone conversations with unidentified persons have been received in evidence, where circumstances following the conversation indicate that the person who spoke was speaking with authority: 22 Corpus Juris 193; 1 Ruling Case Law 477.' In that case, the ...