Opinion
02-19-1902
SMITH v. DELAWARE & A. TELEGRAPH & TELEPHONE CO.
William Early, for complainant. D. J. Pancoast, for defendant.
Suit by Rufus W. Smith against the Delaware & Atlantic Telegraph & Telephone Company. Mandatory injunction ordered.
William Early, for complainant.
D. J. Pancoast, for defendant.
REED, V. C. This suit is brought to compel the defendant to remove certain telephone or telegraph wires strung over the sidewalk in front of the complainant's premises without the consent of the complainant The single defense interposed is that the testimony fails to show that the Delaware & Atlantic Telegraph & Telephone Company caused said wires to be strung and maintained. The testimony connecting the defendant with the stringing of these wires is that of William Early, the solicitor of the complainant. The substance of his testimony is that prior to the bringing of the suit, he, for the purpose of ascertaining whether the Delaware & Atlantic Telegraph & Telephone Company actually erected the wires on Mr, Smith's property at Elmer, called at the office of the company In Philadelphia. He says: "I was shown to the office of the general manager, Mr. Westbrook, and had a conversation with him, in which conversationMr. Westbrook told me that he was the general manager of the company, and authorized to speak for the company; that it was the Delaware & Atlantic Telegraph & Telephone Company who had erected the wires on the property of Mr. Smith on Main street in Elmer; and that he received a letter from Mr. Smith forbidding the placing of the wires there, and asked him (Mr. Early) whether a money consideration would settle the matter." Mr. Smith had testified that as soon as he found the borough council had passed an ordinance he wrote to the Delaware & Atlantic Telegraph & Telephone Company, forbidding them to erect poles and string wires over his property; that this letter was mailed in an envelope with his name on the outside, with the direction that, if not delivered in five days, to be returned to Rufus W. Smith, with his address; and that the letter was never returned. The evidence of Mr. Early, it is perceived, is that Mr. Westbrook told him that he was the general manager of the company, and authorized to speak for the company, and that it was the company who had erected these wires, and that he had received a letter from Mr. Smith. No objection was interposed by the solicitor of the company to the admission of this testimony The testimony is hearsay, but if, by reason of the silence of the solicitor of the company at the hearing, it is to be regarded as competent, it shows that Mr. Westbrook was the subsisting agent of the company in respect to the business of the company, which included the stringing of the wires, and that his admission was made while still an agent, in the transaction of business concerning his agency. The rule is undoubtedly well settled that an agency cannot be proved by the declaration of an agent if objection be made. Where, however, no objection is made, hearsay evidence, like any other evidence, is to be considered, and given the importance it deserves. In some instances a distinction has been drawn between trials before a court alone, and trials before a jury in respect to the admissibility of hearsay testimony. State v. McDonald, 1 N. J. Law, 382 (*332), in the case of Heusinkveld v. Insurance Co., 76 N. W. 696, 106 Iowa, 229, it was held that even in a trial before a jury the jury may properly consider a witness' testimony that one person was the agent of another, though such witness' knowledge of such relation is shown to be based entirely on hearsay, where no objection is made to the competency of the witness. The incompetency, therefore, of this testimony, being waived by want of objection, the only question is in respect to its probative force. The probative force of this declaration by Mr. Westbrook must be regarded in connection with the fact that no testimony was offered by the company to refute it. It is impossible to disregard the significance of the fact that a party who has it in its power to show the inaccuracy of a statement made by an opposing witness fails to make the attempt. Viewing the testimony of Mr. Early in this light, I have no doubt that these wires were strung by the defendant.
I will advise a mandatory injunction.