Horace Gray

“ But it certainly was a cipher message, and to hold that the acceptance by the defendant's operator at Philadelphia made the company liable for errors in its transmission would not only disregard the express stipulation that no employe of the company could vary the conditions of the contract, but would wholly nullify the condition as to cipher messages, for the fact that any message is written in cipher must be apparent to every reader. ”

“ It is difficult to see anything unreasonable or against public policy in a stipulation that if the handwriting of a message delivered to the company for the transmission is obscure, so as to be read with difficulty, or is in cipher, so that the reader has not the usual assistance of the context in ascertaining particular words, the company will not be responsible for its miscarriage, and that none of its agents shall, by attempting to transmit such a message, make the company responsible. ”

“ The fallacy in that reasoning appears to us to be in the assumption that the company, under its admitted power to fix a reasonable rate of compensation, establishes the usual rate as the compensation for the duty of transmitting any message whatever; whereas, what the company has done is to fix that rate for those messages only which are transmitted at the risk of the sender, and to require payment of the higher rate of half as much again if the company is to be liable for mistakes or delays in the transmission or delivery or in the nondelivery of a message. ”

“ The carrier has the actual and manual possession of the goods. The identity of the goods which he receives with those which he delivers can hardly be mistaken. Their value can be easily estimated, and may be ascertained by inquiry of the consignor, and the carrier's compensation fixed accordingly; and his liability in damages is measured by the value of the goods.
But telegraph companies are not bailees, in any sense. ”

“ Telegraph companies resemble railroad companies and other common carriers, in that they are instruments of commerce, and in that they exercise a public employment, and are therefore bound to serve all customers alike, without discrimination. ”

“ Beyond this, under any contract to transmit a message by telegraph, as under any other contract, the damages for a breach must be limited to those which may be fairly considered as arising according to the usual course of things from the breach of the very contract in question, or which both parties must reasonably have understood and contemplated, when making the contract, as likely to result from its breach. ”

“ It may be wholly valueless, if not forwarded immediately; and the measure of damages, for a failure to transmit or deliver it, has no relation to any value of the message itself, except as such value may be disclosed by the message, or be agreed between the sender and the company.
As said by Mr. Justice Strong, speaking for this court, in Express Co. v. Caldwell, above cited: 'Like common carriers, they cannot contract with their employers for exemption from liability for the consequences of their own negligence. ”

“ In the earliest American case, decided by the court of appeals of Kentucky, the reasons for upholding the validity of a regulation very like that now in question were thus stated: 'The public are admonished by the notice that, in order to guard against mistakes in the transmission of messages, every message of importance ought to be repeated. A person desiring to send a message is thus apprised that there may be a mistake in its transmission, to guard against which it is necessary that it should be repeated. ”

“ By the settled law of this court, common carriers of goods or possengers cannot, by any contract with their customers, wholly exempt themselves from liability for damages caused by the negligence of themselves or their servants. ”

“ They have, doubtless, a duty to the public to receive, to the extent of their capacity, all messages clearly and intelligibly written, and to transmit them upon reasonable terms. But they are not common carriers. ”

“ Railroad Co., already cited, in which five horses were delivered by the plaintiff to a railroad company for transportation under a bill of lading, signed by him and by its agent, which stated that the horses were to be transported upon the terms and conditions thereof, 'admitted and accepted by' the plaintiff 'as just and reasonable,' and that freight was to be paid at a rate specified, on condition that the carrier assumed a liability not exceeding $200 on each horse ”

“ 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 1,000 miles, and two per cent. ”

“ The verdict being for the plaintiff, the court reserved the question whether the defendant was liable, inasmuch as the plaintiff had not insured the message nor directed it to be repeated, and afterwards entered judgment for the defendant, notwithstanding the verdict, in accordance with an opinion of Judge Hare, the most important parts of which were as follows:
'A railway, telegraph, or other company, charged with a duty which concerns the public interest, cannot screen themselves from liability for negligence ”

“ But without reference to the fact as to whether the appellant had knowledge of the true meaning and character of the dispatch, and was thus enabled to contemplate the consequences of a breach of the contract, the jury were instructed that the appellee was entitled to recover to the full extent of his loss by the decline in gold. ”

“ 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. ”

“ Telegraph Co., 48 N. Y. 132, the plaintiffs' agent wrote, at his own office in Palmyra, on one of the company's blanks, substantially like that now before us, and delivered to the company at Palmyra, a message addressed to brokers in New York, and in these words, 'Buy us seven ($700) hundred dollars in gold.' In the statement of facts upon which the case was submitted, it was agreed that he had never read the printed part of the blank, and that 'the message thus delivered was transmitted from the office at Palmyra as written ”

“ 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 ”