De Lore v. Smith

• Decision Date: 11 November 1913
• Parties: DE LORE v. SMITH.
• Court: Oregon Supreme Court

136 P. 13

67 Or. 304

DE LORE v. SMITH.

Supreme Court of Oregon, En Banc.

November 11, 1913

Appeal from Circuit Court, Grant County; Dalton Biggs, Judge.

Action by M.E. De Lore against Joseph L. Smith. Judgment for defendant, and plaintiff appeals. Affirmed.

See also, 132 P. 521.

S.A Lowell, of Pendleton (Errett Hicks and Otis Patterson, both of Canyon City, on the brief), for appellant.

A.D Leedy, of Canyon City, for respondent.

McNARY, J.

This is an action of replevin whereby plaintiff seeks to recover from defendant the possession of two cows claimed to have been taken unlawfully from plaintiff on June 17, 1912. Demand was made upon defendant for their return 12 days later. Defendant after denying, upon information and belief, plaintiff's ownership and possession of the property asserted as a separate defense that prior to the 17th day of June, 1912 defendant obtained the cows by exchange of other property from one Floyd Gilcrest to whom the property was redelivered on July 2, 1912. Plaintiff replied by general denial. The trial of the case resulted in a verdict for defendant.

During the progress of the trial defendant, for the purpose of showing knowledge upon the part of plaintiff of the return of the cattle to Gilcrest, gave testimony to the effect that he overheard a conversation between plaintiff and her daughter wherein the former was told the cows had been redelivered to Gilcrest. Plaintiff's counsel objected to the testimony for the reason that the witness was an eavesdropper and thereby committed "an act of gross impropriety and a moral wrong and a witness testifying to such a conversation could not show any of the elements or conditions which must first be shown in order to admit evidence of such a conversation." Defendant overheard the conversation, to which objection was made, at a point on the telephone intermediate between the home of plaintiff and her daughter who is the wife of Gilcrest. In qualifying himself as a witness, defendant stated that by chance he took down the receiver of the telephone when the parties were engaged in conversation and that he heard the declaration and knew the voices of the parties conversing. Since a time practically concurrent with the use of the telephone as a medium of communication, the courts have held that a conversation had over the telephone was admissible when the witness could testify he recognized the voice of the party speaking. While the practice of eavesdropping or "cutting in" on a telephone is most despicable, yet we cannot say as a rule of evidentiary law that the practice of this impropriety disqualifies a person who has qualified himself by testifying he recognized the voice of the speaker. Under the circumstances, the question whether the conversation did take place, its nature, and whether defendant correctly identified the voices engaged in the conversation was a fact for the jury.

...