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Primrose v. Western Union Tel. Co., 154 U.S. 1 (1894)

Primrose v. Western Union Telegraph Company

No. 59

Argued November 1-2, 1893

Decided May 26, 1894

154 U.S. 1


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.

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

Page 154 U. S. 2

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:


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.



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


"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,

Page 154 U. S. 3

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 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:


"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



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.


Page 154 U. S. 4

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;

Page 154 U. S. 5

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.

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),

Page 154 U. S. 6

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 upward of $20,000.

The circuit court, following White v. Western Union Tel. Co., 14 F. 710, and Jones v. Western Union Tel. Co., 18 F. 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.

Page 154 U. S. 12

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