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Statement of the Case.

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 per cent for any distance not exceeding 1000 miles, and two per cent for any greater distance. No employé 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 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.

"THOS. T. ECKERT, Gen'l Manager. NORVIN GREEN, President."

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:


"This Company TRANSMITS and DELIVERS messages only on conditions limiting its Hiability, 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.

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"To W. B. Toland, Waukeney, Kansas.

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

mince moment promptly of purchase.

June 16, 1887. Forwarded from Ellis.


Statement of the Case.

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.

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[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; send 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 12, 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;

Statement of the Case.


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, and "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.

The plaintiff introduced depositions, taken in September, 1888, of one Stevens and one Smith, who were respectively telegraph operators of the defendant at Brookville and at Ellis in the State of Kansas, on June 16, 1887.

Stevens testified that Brookville was a relay station of the company, at which messages from the East were repeated westward; that on that day one Tindall, his fellow operator in the Brookville office, handed him a copy in Tindall's handwriting of the message in question, (an impression copy of which he identified and annexed to his deposition,) containing the words "despot" and "bay,' and he immediately transmitted it word for word to Ellis; that the equipment of the office at Brookville was in every respect good and sufficient, and that he had no recollection of the wires between it and Ellis having been in other than good condition on that day.

Smith testified that on that day he received the message at Ellis from Brookville, and immediately wrote it down word for word, just as received, (and identified and annexed to his deposition an impression copy of what he then wrote down,)

Argument for Plaintiff in Error.

containing the words "destroy" and "buy," and transmitted it, exactly as he received it, to Waukeney, to which Toland had directed any messages for him to be forwarded; and that the office at Ellis was well and sufficiently equipped for its work, but he could not recall what was the condition of the wires between it and Brookville.

The plaintiff also introduced evidence tending to show that June 16, 1887, was a bright and beautiful day at Ellis and Waukeney; that Toland, upon receiving the message at Waukeney, made purchases of about 300,000 pounds of wool; and that the plaintiff, in settling with the sellers thereof, suffered a loss of upwards of $20,000.

The Circuit Court, following White v. Western Union Tel. Co., 5 McCrary, 103, and Jones v. Western Union Tel. Co., 18 Fed. Rep. 717, ruled that there was no evidence of gross negligence on the part of the defendant, and that, as the message had not been repeated, the plaintiff, by the terms printed upon the back of the message, and referred to above his signature on its face, could not recover more than the sum of $1.15, which he had paid for sending it. The plaintiff not claiming that sum, the court directed a verdict for the defendant, and rendered judgment thereon. The plaintiff tendered a bill of exceptions, and sued out this writ of error.

Mr. Joseph de F. Junkin, (with whom was Mr. George Junkin on the brief,) for plaintiff in error.

I. A telegraph company is a common carrier, and subject to the law of common carriers. This point has never been squarely before this court; but in Delaware & Atlantic Tel. Co. v. Postal Tel. Co., 3 U. S. App. 30, 105, it was said by Butler, J.:

"It is no longer open to question that telephone and telegraph companies are subject to the rules governing common carriers and others engaged in like public employment.

"This has been so frequently decided that the point must be regarded as settled.

"While it has not been directly before the Supreme Court of the United States, cases in which it has been so determined

Argument for Plaintiff in Error.

are cited approvingly by that court in Budd v. New York, 143 U. S. 517.

"This case adheres to and confirms the doctrine of Munn v. Illinois, 94 U. S. 113, which is the leading case on defining the law relating to common carriers."

See also Shearman and Redfield on Negligence, §§ 354, 355, where the position for which we are contending is presented in a manner that seems to us to be unanswerable.

II. Being a common carrier, a telegraph company cannot legally impose conditions upon one whose message it accepts for transmission, relieving itself from responsibility for damages to the sender, resulting from its own negligence.

As was said by the trial judge in this case, the cases in the various state courts where the decisions turned upon this proposition, are very numerous and look both ways.

More or less well considered affirmative discussions of this proposition will be found in the following decisions of the state courts: Rittenhouse v. Independent Telegraph, 1 Daly, 474, and 44 N. Y. 263; Turner v. Hawkeye Tel. Co., 41 Iowa, 458; Western Union Tel. Co. v. Meek, 49 Indiana, 53; Western Union Tel. Co. v. Fenton, 52 Indiana, 1; Tyler v. Western Union Tel. Co., 60 Illinois, 421, and 74 Illinois, 168; Ayer v. Western Union Tel. Co., 79 Maine, 493; Bartlett v. Western Union Tel. Co., 62 Maine, 209; True v. International Tel. Co., 60 Maine, 9; Telegraph Co. v. Griswold, 37 Ohio St. 301; Western Union Tel. Co. v. Crall, 38 Kansas, 679; Western Union Tel. Co. v. Howell, 38 Kansas, 685; Dorgan v. Telegraph Co., 1 Am. Law Times, (N. S.,) 406; N. Y. &c. Tel. Co. v. Dryburgh, 35 Penn. St. 298; Hibbard v. Western Union Tel. Co., 33 Wisconsin, 558; Candee v. Western Union Tel. Co., 34 Wisconsin, 471; La Grange v. Southwestern Tel. Co., 25 La. Ann. 383. See also Wharton on Negligence, § 763; Shearman and Redfield on Negligence, §§ 558, 559, 565.

In Ayer v. Western Union Tel. Co., 79 Maine, 493, 496-498, it is said: "The defendant claims its liability is limited to the amount paid for the transmission of the message. It claims this limitation on two grounds.

"1. The company relies upon a stipulation made by it with

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