Stein v. Jasculca, 165 Wis. 317.

of fur which was inferior, and was then answered to the effect that the person at the telephone could not do anything, but that she would have Mr. Savitzky call as soon as he came in. A few days later Mrs. Jasculca called up again and referred to the message left four or five days before that Mr. Savitzky was to be sent over about the furs, and was informed by the person then answering the telephone that the message must have been overlooked by the person taking the same; that the person now answering the telephone would have Mr. Savitzky go right over to defendant's place of business. About a week or so later the goods were sent by defendant to plaintiff's place of business and refused. It was conceded that Mrs. Jasculea at the time of the telephone conversations did. not recognize the voice of the person with whom she had talked and that the second telephone conversation was had with a different person than the first.

Plaintiff's counsel objected to all of the telephone conversations and the civil court sustained the objection. The plaintiff in rebuttal offered the testimony of the bookkeeper to the effect that she received no telephone message from anybody relative to the transaction of October 5th, that she and the stenographer usually answered the telephone and that the stenographer was accustomed to report everything to her, and that no such telephone conversation was ever reported to her. The stenographer was not called as a witness. The goods were not returned to plaintiff until about twenty days after October 5th. The civil court found in favor of the defendant. On appeal to the circuit court the decision of the civil court was reversed and judgment was ordered for the plaintiff upon the ground, as appears in the decision of the circuit court, that the return of the goods was after an unreasonable delay and therefore a confirmation of the sale. Nothing was said in the decision with reference to the telephone communications above specified and it is apparent that the circuit court must have disregarded them.

Stein v. Jasculca, 165 Wis. 317.

For the appellant there was a brief by S. Fred Wetzler, attorney, and A. W. Schutz, of counsel, both of Milwaukee, and oral argument by Mr. Schutz.

Robert A. Hess of Milwaukee, for the respondent.

ESCHWEILER, J. If the telephone communications between defendant's wife as his agent with some one at plaintiff's place of business who responded and assumed to answer on plaintiff's behalf, after having been called through the central office by the telephone number belonging to plaintiff, and in the usual manner; should have been received, then there is uncontradicted evidence of a notification by defendant to plaintiff that the goods did not meet the conditions of the sale and an offer to return them, and this would then support the judgment in favor of the defendant rendered in the civil court, and no other of the questions raised need be considered.

There has been some dispute among the authorities as to how far such telephone communications may be received in evidence where there is no proof of the identification by voice at least of the person with whom the communication was had. In the case at bar, where the plaintiff and defendant is each a member of the general public telephone exchange with their respective numbers furnished in the directory, and a call is made, such as here, in the usual manner, by one through the telephone exchange to the place of business of the other party, and some one there undertakes to answer and accept the communication conveyed over the telephone, it must be held to be sufficient prima facie evidence that the message was delivered at that place of business to some one authorized to receive the same on behalf of the person or firm to whom the telephone was accredited. Having adopted the telephone with its manifold advantages, it seems a reasonable and salutary rule to hold the users to be subject to its possible disadvantages, such as are urged in opposition to this rule.

Kuchler v. Milwaukee, 165 Wis. 320.

This view is supported by many of the recent decisions, among others Union C. Co. v. Western Union Tel. Co. 163 Cal. 298, 306, 125 Pac. 242; Guest v. II. & St. J. R. Co. 77 Mo. App. 258, 261; Wolfe v. M. P. R. Co. 97 Mo. 473, 481, 11 S. W. 49; Gardner v. Hermann, 116 Minn. 161, 133 N. W. 558; Shawyer v. Chamberlain, 113 Iowa, 742, 84 N. W. 661; General H. Soc. v. New Haven R. Co. 79 Conn. 581, 65 Atl. 1065; Jones, Ev. (2d ed.) § 211 (210).

It follows therefrom that the evidence of such conversations should have been received, and, the rebutting evidence having gone no further than to show that one of the two persons denied any such conversation, there still stood as an untradicted fact that some conversation was had with some person in charge of the telephone at plaintiff's office and not called as a witness to dispute that fact.

By the Court. Judgment of the circuit court reversed, and the action remanded with directions to affirm the judgment of the civil court.

ROSENBERRY, J., dissents.

KUCHLER, Appellant, vs. CITY OF MILWAUKEE, Respondent. March 13-April 4, 1917.

Appeal: Review: Questions for jury: Highways: Injuries to travelers: What defects actionable: Break in curbstone outside of line of travel.

1. The decision of the circuit court that the evidence in a case does not present a jury question must, on appeal, be regarded as right unless the contrary clearly appears.

2. An imperfection in a highway which is outside of the ordinary course of travel and the place prepared therefor, and not so near thereto or so connected therewith as to render such place not reasonably safe, is not an actionable defect.

Kuchler v. Milwaukee, 165 Wis. 320.

3. In an action against a city for injuries to a pedestrian who fell when he stepped or his foot slipped into a break or hole in the curbstone at a point about three and one-half feet distant from the sidewalk and crosswalk prepared for travel, it is held that the trial court was not clearly wrong in directing a verdict for defendant on the ground that, in view of its location, the defect in the street was not an actionable one.

APPEAL from a judgment of the circuit court for Milwaukee county: OSCAR M. FRITZ, Circuit Judge. Affirmed.

Action to recover for a personal injury which plaintiff received, as claimed, by reason of an insufficient condition for public travel of a street in defendant city.

The evidence was to this effect: Walnut street, in the city of Milwaukee, is an east-and-west thoroughfare. Extending at right angles south therefrom is Fifteenth street. The former is paved with asphalt which extends southerly at the intersection of the streets to the south line of Walnut street so that the crossing from the east to the west side is paved with asphalt. South of the asphalt paving on Fifteenth street there is a macadam pavement. On the south side of Walnut street, at the southwest corner of that and Fifteenth street, there is a cement sidewalk, which, in front of the building at the corner, except for interference by steps at the front door thereof, extends from the curb back to the lot line, a distance of eleven feet. Extending south from this into Fifteenth street, from a point about two and threequarters feet north of the south line of Walnut street, there is a six-foot-wide sidewalk, making the eleven-foot sidewalk aforesaid extend east on Walnut street to within about five feet and eight inches of the curbstone on Fifteenth street, which is about eleven feet east of the lot line, leaving a space between the curb on such street and the cement sidewalk thereon extending about two and three-quarters feet north of the south line of Walnut street, which is not paved. The earth bed comes up nearly to the top of the cement walk and the top of the curb. The stone is about ten inches high, so

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Kuchler v. Milwaukee, 165 Wis. 320.

set as to make a round corner at the intersection of the two streets at the corner in question. In the curbstone on Fifteenth street, seven and three-quarters inches south of the south line of Walnut street and about three and one-half feet from the south side of the cement walk in such street there was a piece broken out, leaving a hole in the stone, the width thereof, about seven and three-quarters inches long at the top and five inches at the bottom and three and three-eighths inches deep. It had existed for several months before the accident. If one, in walking west on the crossing to reach the cement walk at the southwest corner of the two streets, kept in line with the south side of such walk, extending west on Walnut street, he would not go nearer to the hole in the curb than about three and one-half feet. Plaintiff, in the daytime, took that course, and was well within the regular traveled way, until he reached a point about two feet from the curbstone when a team, drawing a coal wagon, was driven around the corner into Fifteenth street, so as to cause him to step south of the crossing and to the vicinity of the hole. After the team and wagon passed him he stepped upon the curb to take a course northwesterly across the unpaved area west of it to the cement walk. As he did so, he either stepped into the hole or so close thereto that his foot slipped into it, causing him to lose his balance and fall, breaking his arm and otherwise injuring him.

At the close of the evidence the court directed a verdict in favor of the defendant upon the ground that the hole was of such nature and so located with reference to the course of travel and place prepared therefor as not to constitute an actionable defect. Judgment was rendered accordingly.

Michael Levin of Milwaukee, for the appellant.

For the respondent there was a brief by Clifton Williams, city attorney, and E. L. McIntyre, first assistant city attor ney, and oral argument by Mr. McIntyre.