1. Where the supreme court of a state, in denying a petition for
certiorari to an intermediate appellate court, on the face of the
record did not pass upon the merits, the writ of certiorari from
this Court is properly directed to the intermediate court. P.
276 U. S.
Page 276 U. S. 253
2. A provision in the tariff filed by a telegraph company
pursuant to the Interstate Commerce Act as amended June 15, 1910,
fixing a lower rate for an unrepeated message and limiting the
liability of the company for mistake in its transmission to the
mount received for sending it represents the entire liability of
the company for a mistake of that kind. The liability, being
statutory, cannot be enlarged by the courts upon the ground that
the mistake was due to "gross" negligence. P. 276 U. S.
21 Ala.App. 587 reversed.
Certiorari, 274 U.S. 727, to a judgment of the Court of Appeals
of the State of Alabama affirming a recovery in an action against
the telegraph company for damage resulting from a mistake in the
transmission of a telegram. The supreme court of the state had
declined to review the judgment of the court below, 215 Ala. 435.
For earlier proceedings in the same case, see
531; 20 id.
388; 212 Ala. 271.
Page 276 U. S. 256
MR. JUSTICE STONE delivered the opinion of the Court.
Respondent delivered to petitioner a message for transmission
over its telegraph lines from a point in Alabama to a point in
Louisiana by which respondent offered to sell to the addressee a
quantity of pecans at fifty cents per pound. In the message as
transmitted, the word "fifteen" was substituted for the word
"fifty." Respondent, who in consequence of the error suffered
damage in the sum of $352.10, brought suit in the Circuit Court of
Butler County, Alabama, to recover for petitioner's negligence in
failing to transmit the message as given. The company pleaded that
(a) as the message was not a repeated message, its liability was
limited to the amount received for sending it, by the terms of the
tariffs and classifications filed with the Interstate Commerce
Commission under Act of June 18, 1910, c. 309, § 7, amending
Interstate Commerce Act, § 1, and (b) as the message was not sent
as a specially valued message, the liability of the company was
limited to $50 by the filed tariffs and classifications. Relevant
parts of the tariff are printed in the margin. *
Page 276 U. S. 257
The demurrers to the pleas were overruled and judgment given for
the defendant, the petitioner here, which was reversed by the state
court of appeals, 18 Ala.App. 531, on the authority of Western
Union Telegraph Co. v. Esteve Bros. & Co., 256 U.
. Upon an amended complaint charging gross
negligence, a trial was had resulting in a verdict and judgment for
the plaintiff for nominal damages, which was affirmed by the court
of appeals on the ground that the evidence did not establish gross
negligence and that the trial court had rightly withdrawn that
question from the jury. 20 Ala.App. 388. The Supreme Court of
Alabama reversed the judgment of the court of appeals, ruling that,
although the filed tariff was a bar to the recovery of damages
resulting from negligence, as decided in the Esteve
it did not preclude a recovery for gross negligence, and that, on
the evidence, the jury should have been allowed to say whether the
Page 276 U. S. 258
of the defendant was gross. Ex parte Priester,
271. On a retrial, judgment was again given for the plaintiff for
the full amount demanded. This was affirmed by the court of
appeals, which, following the previous opinion of the state supreme
court, held that the tariff was not a defense to an action for
damages resulting from gross negligence. 21 Ala.App. 587. The state
supreme court denied certiorari, 215 Ala. 435. This Court granted
certiorari. Judicial Code, 237(b); 274 U.S. 727.
Through abundance of caution, petitioner filed separate
petitions here, which were granted, asking that writs of certiorari
be directed respectively to the court of appeals and to the supreme
court. But, as the Supreme Court of Alabama, by denying the
petition for certiorari, on the face of the record, did not pass on
the merits, the writ of this Court in No. 183 was properly directed
to the court of appeals, and that in No. 189 is dismissed.
Norfolk Turnpike Co. v. Virginia, 225 U.
, 225 U. S. 269
Western Union Telegraph Co. v. Crovo, 220 U.
; compare Matthews v. Huwe, 269 U.
In Primrose v. Western Union Telegraph Co.,
154 U. S. 1
upon by the Supreme Court of Alabama in the earlier appeal as
supporting its distinction between ordinary negligence and gross
negligence, a contract between the telegraph company and its
patron, limiting the liability of the company if the message was
not repeated, was upheld as a defense to an action seeking recovery
for the negligent transmission of the message. Although it is
suggested in the opinion (pp. 17-19) that, as a matter of public
policy, the company would not have been permitted to stipulate away
its liability for gross negligence, the distinction was neither
involved in the case nor applied by the court, nor has it been so
applied. See Philadelphia & Reading R.
Co. v. Derby,
14 How. 468, 55 U. S.
Page 276 U. S. 259
Steamboat New World v.
16 How. 469, 57 U. S. 474
Milwaukee & St. Paul Ry. v. Arms, 91 U. S.
, 91 U. S.
Since the decision in the Primrose
case, the telegraph
companies have been brought under the provisions of the Interstate
Commerce Act, and their tariffs for all interstate service made
subject to the approval of the Interstate Commerce Commission.
Interstate Commerce Act, § 1, as amended by Act of June 18, 1910,
c. 309, § 7, 36 Stat. 539. By § 1 of the Interstate Commerce Act,
it is provided that subject to the approval of the Commission
messages received by telegraph companies for transmission may be
classified into "repeated, unrepeated . . . , and such other
classes as are just and reasonable, and different rates may be
charged for the different classes of messages." The established
rates for unrepeated messages thus became the lawful rates, and the
attendant limitation of liability became the lawful condition upon
which messages might be sent. Unrepeated Message Case, 44 I.C.C.
670; Western Union Telegraph Co. v. Esteve Bros. & Co.,
supra, 256 U. S. 571
Postal Telegraph-Cable Co. v. Warren-Godwin Co.,
251 U. S. 27
Western Union Telegraph Co. v. Boegli, 251 U.
; Western Union Telegraph Co. v. Czizek,
264 U. S. 281
What had previously been a matter of common law liability, with
such contractual restrictions as the states might permit, then
became the subject of federal legislation to secure reasonable and
just rates for all, without undue preference or advantage to any.
Since that end is attainable only by adherence to the approved
rate, based upon an authorized classification, that rate
"represents the whole duty and the whole liability of the company."
Western Union Telegraph Co. v. Esteve Bros. & Co.,
Such being the basis of liability, we do not perceive
any adequate ground upon which it may be enlarged merely by the
application of a "vituperative epithet" to the admitted
Page 276 U. S. 260
fault of the petitioner. Milwaukee & St. Paul Ry. v.
Arms, supra, 91 U. S. 494
For if it be assumed that we can weigh and measure degrees of
negligence and that a public service company may not, by contract
alone, limit its liability for gross negligence, so called,
nevertheless we may not disregard a lawful exercise of the
regulatory power which has made no distinction between degrees of
negligence, nor may we, upon any theory of public policy, annex to
the rate as made conditions affecting its uniformity and
The message here was unrepeated, and the loss resulted from a
mistake in transmission. The case thus comes within the express
provision of clause 1 of the tariff, limiting the liability to the
amount received for the service.
The cause will be reversed and remanded for further proceedings
not inconsistent with this opinion.
"ALL MESSAGES TAKEN BY THIS COMPANY ARE SUBJECT TO THE FOLLOWING
"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
unrepeated message rate is charged in addition. Unless otherwise
indicated on its face, THIS IS AN UNREPEATED MESSAGE AND PAID FOR
AS SUCH, in consideration whereof it is agreed between the sender
of the message and the Company as follows:"
"1. The Company shall not be liable for mistakes or delays in
the transmission or delivery, or for nondelivery, of an unrepeated
message, 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 beyond fifty times the sum
received for sending the same, unless specially valued, nor in any
case for delays arising from unavoidable interruption in the
working of its lines; nor for errors in cipher or obscure
"2. In any event, the Company shall not be liable for damages
for any mistakes or delays in the transmission or delivery, or for
nondelivery of this message, whether caused by the negligence of
its servants or otherwise, beyond the sum of Fifty Dollars, at
which amount this message is hereby valued, unless a greater value
is stated in writing hereon at the time the message is offered to
the Company for transmission, and an additional sum paid or agreed
to be paid based on such value equal to one-tenth of one percent,