Cohen v. Standard Acc. Ins. Co.
| Decision Date | 31 May 1940 |
| Docket Number | 15095. |
| Citation | 9 S.E.2d 222,194 S.C. 533 |
| Parties | COHEN v. STANDARD ACC. INS. CO. |
| Court | South Carolina Supreme Court |
Douglas McKay and J. B. McCutcheon, Jr., both of Columbia, for appellant.
C T. Graydon and John Grimball, both of Columbia, for respondent.
The action was brought in October, 1937, by the plaintiff against the defendant for the recovery of damages for the alleged wrongful cancellation of a forthcoming bond, by reason of which the plaintiff alleges that he was unable to reopen a liquor store at Myrtle Beach, South Carolina. The trial resulted in a verdict against the defendant for actual damages.
There are several grounds of appeal, but the gravamen of the defendant's case is that the Court refused to grant its motion for a directed verdict, based mainly upon its contention that there was no evidence tending to prove that the Standard Accident Insurance Company had cancelled, or ordered the non-acceptance of the bond in question.
The factual background of the case shows that the plaintiff Murphy Cohen, and one Brooks Baldwin, operated together a liquor store at Myrtle Beach in 1936, under the name of Carolina Liquor Store-- whether as partners or otherwise it is unnecessary to consider at this time. As a result of disagreements and disputes between them, the plaintiff brought an action on July 2, 1937, against Baldwin and the Carolina Liquor Store, praying, among other things, for an accounting, and for the appointment of a receiver. As a result of this suit the doors of the business were closed and a receiver appointed. On July 16, 1937, Baldwin, apparently under the belief that the suit instituted by Cohen had been abandoned, brought suit against the latter, praying for similar relief, including the appointment of a receiver. Thereafter, it appearing that the Cohen suit had not been abandoned, the action brought by Baldwin was dismissed, on July 27, 1937.
On or about August 1, 1937, the plaintiff decided to secure a bond in double the value of the property, which would enable him when filed to reopen the store. He went to Columbia and solicited the aid of John L. Mimnaugh of the Jordon Insurance Agency, who advised him that he could not write the bond in this State, and would have to go out of the State to secure it. For this purpose Cohen accompanied Mimnaugh, in the latter's car, to Augusta, Georgia, and there saw Mr. I H. Cohen (not related to the plaintiff), an agent of the defendant, who issued the bond which has given rise to the present action.
The bond was executed by Murphy Cohen, as principal, and by Standard Accident Insurance Company, as surety, by I. H Cohen, its attorney in fact. It bears the names of two persons as witnesses, and immediately below their signatures appears the name of "John L. Mimnaugh". Under the name of Mimnaugh appear the words "S. C. Agent". The bond was issued on August 4, 1937, and was delivered to Murphy Cohen, who says that he paid the sum of $150 therefor to Mimnaugh. On the fifth or sixth of August, 1937, the bond was presented to Mr. John Holt, Clerk of Court for Horry County, in which county the receivership action had been brought, whose duty it was to approve and file bonds. Mr. Holt refused to approve the bond, and the plaintiff contends that the refusal was due to a telephone message purporting to have originated from the Atlanta office of the defendant, directing the clerk not to accept the bond, but to forward it to Atlanta.
The main issue in this appeal has to do with the admissibility of the testimony concerning this telephone call, upon which the plaintiff relies to show wrongful cancellation on the part of the defendant. The trial Court admitted the testimony over the objection of the defendant.
Mr. Holt testified that the bond was offered to him by the plaintiff, and that it was acceptable in form and amount. That before he had taken any action on it, and while the attorneys for Murphy Cohen and Baldwin were in his office discussing the matter, he received a telephone call purporting to be from the Atlanta office of the Standard Accident Insurance Company. It is admitted that Mr. Holt did not know the identity of the person who spoke with him over the telephone, did not recognize his voice, and could not recall the name he gave. In reply to the question, "What did he tell you to do?" he said: "He advised that he wanted the bond returned to him, that he didn't want me to approve the bond, but to return it to his office." After rejecting the bond, Mr. Holt did not return it to the defendant, but delivered it to the plaintiff's attorney.
The general rule is that in order to introduce evidence of a telephone conversation or communication otherwise unobjectionable, the identity of the person who is claimed to have talked over the telephone, must first be satisfactorily established by the party seeking the introduction of the telephone conversation. The rationale of the principle is that to hold one responsible for statements and answers made over the telephone by unidentified persons would open the door for fraud and imposition. The rule, however, is subject to certain exceptions relating to calls made to or from business offices, where the conversation carried on is one regarding the business transacted by such office or business establishment. 20 Am.Jur., Section 366, Page 334.
According to the weight of authority, evidence is admissible as to a conversation over the telephone where the witness called for a designated person or firm at his or its place of business, and the person answering the call claims to be the person called for, or to represent him or it, and the conversation carried on is one regarding the business transacted by such person or firm. In such cases if the communication was such that it might properly have been made to one found in the office or place of business called, who assumed to have authority to receive it, and who, so far as the contrary appears, did have such authority, the telephone conversation is admissible without further evidence to identify the particular person with whom it was had. This rule is said to be based upon apparent necessity, in view of the constant use of telephones. Gilliland & Gaffney v. Southern R. Co., 85 S.C. 26, 67 S.E. 20, 24, 27 L.R.A., N.S., 1106, 137 Am.St.Rep. 861; 20 Am.Jur., Section 367, Page 335; Annotation, 71 A.L.R. 41, 105 A.L.R. 335.
The case of Gilliland & Gaffney v. Southern Railway, supra, is typical of those cases where the witness himself puts through a call to a business office. In the cited case plaintiff testified that he called the defendant's railroad office with reference to stock damaged in transportation; that someone, whom he did not know and whose voice he did not recognize, answered and told him to get a veterinary surgeon and have an examination made of the injured animals, and the company would settle the bill. The railroad company contended that this conversation was inadmissible because of failure to identify the person speaking from its office; and further, that the evidence failed to show that such person was authorized to speak for the company. In passing upon the question the Court said:
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