Stein v. Jasculca

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 j should have been received, then there is uncontradicted evidence of a notification by defendant to plaintié 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 he 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. [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. H. & 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 un-tradicted 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 Oouri. — Judgment of the circuit court reversed, and the action remanded with directions to affirm the judgment of the civil court. Rosekbebey, J., dissents.