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*Note: The following opinion was edited by AudioCaseFiles' staff.
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First State Bank of Denton v. Maryland Casualty Co.
918 F.2d 38
United States Court of Appeals, Fifth Circuit, 1990

SMITH, Circuit Judge:

The plaintiff, First State Bank of Denton, acting as executor of the will of J.T. Mills, appeals from a jury verdict finding that a fire at the Millses' home was set intentionally. The plaintiff contends that the district court erred by allowing defendant Maryland Casualty Company (the "insurance company") to introduce a telephone conversation that occurred between a police dispatcher and an unknown male at the Mills' home. . . . Finding no reversible error, we affirm.

I.

The parties agree on the basic facts. The Millses' residence, which was insured by the Maryland Casualty Company, was completely destroyed by fire. Pursuant to Texas law, the policy provided that in case of total loss, Mills would receive $ 133,000, the entire face amount of the policy. After inspecting the site, however, the insurance company concluded that the fire was set intentionally and thus refused to make any payment on the policy.

The Millses brought suit to recover on their policy, but both of them died before the trial. The First State Bank of Denton continued the claim as executor. At trial, the insurance company introduced evidence showing that the Millses' house was unoccupied for several weeks prior to the fire but that a neighbor had seen a light in the home a few hours before the flames struck. The company also introduced the testimony of a witness who, right before the fire started, saw a pickup truck leaving the road which accesses the residence. Only Mills and his wife had a key to the house, and Mills owned a pickup truck.

The insurance company also showed that Mills was in financial trouble, as he had bought a second home before he had sold his first. For two years, Mills had attempted to sell his first home, but it had enkindled little interest; because of poor market conditions, the value of the home now was significantly less than the face value of the Millses' policy.

The company concluded by introducing evidence showing that Mills was not at his new home at the time of the fire. About fifteen minutes after the fire began, a police dispatcher attempted to contact Mills at his new residence to notify him of the fire. The dispatcher testified that when she called Mills there, at 1:00 a.m., an unidentified person replied that Mr. Mills was not home. Denton objected, believing this testimony to be unauthenticated and hearsay. The trial court allowed the insurance company to introduce the evidence.

. . .

II.

The plaintiff first contends that the phone call the dispatcher made to Mills's house should not have been admitted into evidence, as it was both unauthenticated and hearsay. The district court overruled both objections. The standard of review is whether the court abused its discretion by failing to sustain the objections, and this is evaluated under a federal standard.
A.

Fed. R. Evid. 901 provides that all evidence must be authenticated before being admitted and that this requirement is satisfied by evidence reliable enough to show that it is what its proponent claims it to be. The rule provides a laundry list of examples of proper authentication. Rule 901(b)(6) provides that authentication can occur for a

telephone conversation[], by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

The illustrations contained in rule 901(b) also provide that they only are examples and do not exhaust all possibilities.

Under the plain language of rule 901(b)(6), when a person places a call to a listed number, and the answering party identifies himself as the expected party, the call is properly authenticated. What is different about the present case is that the person who answered the phone did not identify himself as Mr. Mills; rather, he simply identified the residence as "the Millses' residence." The plaintiff contends that this does not fit within the illustration and that the phone call thus was unauthenticated.

What plaintiff ignores is that the illustrations are not exclusive, but are intended only to provide clear examples of properly authenticated evidence. All that is necessary in authenticating a phone call is that the proponent offer "sufficient authentication to make a prima facie case that would allow the issue of identity to be decided by the jury." . . .

The plaintiff's position, in demanding that the person answering the phone himself be the defendant, implicitly treats the authentication requirement as requiring an admission by a party opponent. This ignores the true reason for requiring the self-identification: The primary authentication occurs because the phone company usually is accurate. "The calling of a number assigned by the telephone company reasonably supports the assumption that the listing is correct and that the number is the one reached." . . .

The self-identification supports this maxim by showing that the correct number was dialed. "In such a situation the accuracy of the telephone system, the probable absence of motive to falsify and the lack of opportunity for premeditated fraud all tend to support the conclusion that the self-identification of the speaker is reliable." . . .

The evidence in this case meets the prima facie standard established in Register. The dispatcher who called the Millses' residence on the night of the fire testified that she correctly dialed the Millses' number and that when she asked whether she had reached the Millses' residence, the person replied that "this is the Millses' residence." Furthermore, when she asked whether Mr. Mills was home, the person answered, "J.T. Mills is not at home."

While the evidence does raise potential hearsay problems, it was sufficiently reliable for authentication. There is little doubt that the dispatcher actually reached Mills's home. The trial court thus did not abuse its discretion by overruling the authentication objection.

B.

As for the hearsay objection, the statement "J.T. Mills is not home" is classic hearsay and precisely parallels the example of hearsay given by McCormick. The insurance company is trying to prove that Mills was not at home -- the truth of the matter asserted -- by offering an out-of-court statement. This is forbidden under rule 801.

However, not all hearsay statements are excluded by the rules of evidence. Rule 803(1) provides that "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter," is not excluded by the hearsay rule. Rule 803(24) also provides that statements that are sufficiently trustworthy to mandate reception into evidence also can be accepted by a trial court. The statements in this case fall within both exceptions.

In United States v. Peacock, a witness testified about comments made by her deceased husband concerning a telephone conversation he had just finished. We upheld the admission of the evidence under rule 803(1), noting that the "'substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.'"

Similar reasoning supports the application of this exception in the instant case. The dispatcher asked the person who answered the telephone to determine whether Mills was there. The respondent left the telephone and did so, and immediately reported that Mills indeed was not at home.

Peacock identifies the timeliness of the statement as the key to determining whether the statement meets the present-sense-impression exception to the hearsay rule. In this case, the statements were made virtually on the heels of the discovery that Mills was not at home. The conversation satisfied the contemporaneity requirement of Peacock and thus properly was received in evidence.

This same reasoning supports reception under the catch-all exception to rule 803. In evaluating the application of rule 803(24), "the length of time between an event and the declarant's statement concerning it is a significant indicator of reliability." In applying this exception, the "duty of the trial judge involves the task of balancing the need for the hearsay against its trustworthiness."

The core inquiry under the rule "concerns the reliability of the declarant," which in this case was strong. The person answering the telephone had little motive to lie and was relating information he had just gathered. Under these circumstances, the hearsay evidence properly was admitted, even assuming it did not meet the precise contours of rule 803(1). See id. Because the telephone conversation was both properly authenticated and fell within an exception to the hearsay rule, the trial court did not abuse its discretion by allowing its introduction. . .

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• Evidence: Cases and Materials
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