154 U.S. 1 (1894), 59, Primrose v. Western Union Telegraph Company

Docket Nº:No. 59
Citation:154 U.S. 1, 14 S.Ct. 1098, 38 L.Ed. 883
Party Name:Primrose v. Western Union Telegraph Company
Case Date:May 26, 1894
Court:United States Supreme Court
 
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154 U.S. 1 (1894)

14 S.Ct. 1098, 38 L.Ed. 883

Primrose

v.

Western Union Telegraph Company

No. 59

United States Supreme Court

May 26, 1894

Argued November 1-2, 1893

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Syllabus

A stipulation between a telegraph company and the sender of a message that the company shall not be liable for mistakes in the transmission or delivery of a message beyond the sum received for sending it, unless the sender orders it to be repeated by being telegraphed back to the originating office for comparison and pays half that sum in addition, is reasonable and valid.

In an action by the sender of a cipher message against a telegraph company, which is not informed by the message or otherwise of the nature, importance or extent of the transaction to which it relates or of the position which the plaintiff would probably occupy if the message were correctly transmitted, the measure of damages for mistakes in its transmission or delivery is the sum paid for sending it.

[14 S.Ct. 1098] This was an action on the case brought January 25, 1888, by Frank J. Primrose, a citizen of Pennsylvania, against the Western Union Telegraph Company, a corporation of New York, to recover damages for a negligent mistake of the defendant's agents in transmitting a telegraphic message from

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the plaintiff at Philadelphia to his agent at Waukeney, in the State of Kansas.

The defendant pleaded 1st, not guilty, 2d, that the message was an unrepeated message, and was also a cipher and obscure message, and therefore, by the contract between the parties under which the message was sent, the defendant was not liable for the mistake. At the trial, the following facts were proved and admitted:

On June 16, 1887, the plaintiff wrote and delivered to the defendant at Philadelphia, for transmission to his agent, William B. Toland at Ellis, in the State of Kansas, a message upon one of the defendant's printed blanks, the words printed below in italics being the words written therein by the plaintiff, to-wit:

THE WESTERN UNION TELEGRAPH COMPANY

THOS. T. ECKERT, General Manager NORVIN GREEN, President

=======================================================================

Receiver's No. Time Filed 13 Check

=======================================================================

Send the following message, subject to the terms) June 16, 1887

on back hereof, which are hereby agreed to )

To Wm. B. Toland, Ellis, Kansas

Despot am exceedingly busy bay all kinds quo perhaps bracken half of

it mince moment promptly of purchases.

FRANK J. PRIMROSE

*** READ THE NOTICE AND AGREEMENT ON BACK OF THIS BLANK ***

Upon the back of the message was the following printed matter:

ALL MESSAGES TAKEN By THIS COMPANY ARE SUBJECT TO THE FOLLOWING TERMS:

To guard against mistakes or delays, the sender of a message should order it REPEATED; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery or for nondelivery of any UNREPEATED message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery or for nondelivery of any REPEATED message,

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beyond fifty times the sum received for sending the same, unless specially insured, nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination.

Correctness in the transmission of a message to any point on the lines of this company can be INSURED by contract in writing, stating agreed amount of risk, and payment of premium thereon at the following rates, in addition to the usual charge for repeated messages, viz., one percent for any distance not exceeding 1,000 miles, and two percent for any greater distance. No employee of the company is authorized to vary the foregoing.

No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices, and, if a message is sent to such office by one of the company's messengers, he acts for that purpose as the agent of the sender.

Messages will be delivered free within [14 S.Ct. 1099] the established free delivery limits of the terminal office. For delivery at a greater distance, a special charge will be made to cover the cost of such delivery.

The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.

NORVIN GREEN, President. THOS. T. ECKERT, General Manager.

On the evening of the same day, an agent of the defendant delivered to Toland at Waukeney, upon a blank of the defendant company, the message in this form, the written words being printed below in italics:

THE WESTERN UNION TELEGRAPH COMPANY

This company TRANSMITS and DELIVERS messages only on conditions limiting its liability, which have been assented to by the sender of the following message.

Errors can be guarded against only by repeating a message back to the sending station for comparison, and the company will not hold itself liable for errors or delays in transmission or delivery of UNREPEATED MESSAGES beyond the amount of tolls paid thereon, nor in any case where the claim is not presented in writing within sixty days after sending the message.

This is an UNREPEATED MESSAGE, and is delivered by request of the sender, under the conditions named above.

THOS. T. ECKERT, General Manager NORVIN GREEN, President

=======================================================================

NUMBER SENT BY REC'D BY CHECK

Rt. S. F.N. 22 Collect 3 extra words

=======================================================================

RECEIVED at 5 K. p.m. June 16, 1887

Dated Philadelphia, 16 Forwarded from Ellis

To W. B. Toland, Waukeney, Kansas

Destroy am exceedingly busy buy all kinds quo perhaps bracken half of

it mince moment promptly of purchase.

FRANK J. PRIMROSE

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The difference between the message as sent and as delivered is shown below, where so much of the message sent as was omitted in that delivered is in brackets, and the words substituted in the message delivered are in italics.

[Despot] Destroy am exceedingly busy [bay] buy all kinds quo perhaps bracken half of it mince moment promptly of purchase[s].

By the private cipher code made and used by the plaintiff and Toland, the meaning of these words was as follows:

Yours of the [fifteenth] seventeenth received; am exceedingly busy; [I have bought] buy all kinds, five hundred thousand pounds; perhaps we have sold half of it; wire when you do anything; second samples immediately, promptly of [purchases] purchase.

The plaintiff testified that on June 16, 1887, he wrote the message in his own office on one of a bunch or book of the defendant's blanks which he kept at hand, and sent it to the defendant's office at Philadelphia; that he had a running account with the defendant's agent there, which he settled monthly, amounting to $180 for that month; that he did not then read, and did not remember that he had ever before read, the printed matter on the back of the blanks, and that he paid the usual rate of $1.15 for this message, and did not pay for a repetition or insurance of it.

He also testified that he then was, and for many years had been, engaged in the business of buying and selling wool all over the country, and had employed Toland as his agent in that business, and early in June, 1887, sent him out to Kansas and Colorado with instructions to buy 50,000 pounds, and then to await orders from him before buying more; that, before June 12th, Toland bought 50,000 pounds, and then stopped buying, and that he had sent many telegraphic messages to Toland during that month and previously, using the same code.

The defendant's agent at Philadelphia, called as a witness for the plaintiff, testified that he sent this message for the plaintiff, and knew that he was a dealer in wool and that Toland was with him, but in what capacity he did not know;

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that he had frequently sent messages for him, and considered him one of his best customers during the wool season; that telegraphic messages by the present system were sent and received by sound, and were all dots and dashes; that "b" was a dash and three dots, and "y" was two dots, a space, and then two dots, and that the difference between "a" and "u" was one dot, "a" being a dot and a dash, "u" two dots and a dash, and the pause upon the last touch of the "u;" that an experienced telegraph operator, if the words were properly rapped out and he was paying proper attention, could not well mistake the one for the other, but might be misled if he was not careful, and that it was very likely that another dot could be put in if there was any interruption in the wire. He further testified that there was a great difference between the words "despot" and "destroy" in telegraphic symbols, and that the letter "s" was made by three dots, so that if an operator received the word "purchases" over the wires, and wrote down "purchase," he omitted three dots from the end of the word.

...

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