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Cool Legal Opinion from 1908:
In the course of writing an article on encryption a few years ago, I came across a very interesting Texas state court decision from 1908 on the liability of telegraph operators for failing to deliver messages in a foreign language. What I find interesting about the decision is how modern it sounds, even a century later. Some of the language is archaic, to be sure, but the opinion has a vaguely Posnerian flavor. The case is Western Union Telegraph Co. v. Olivarri, 110 S.W. 930 (Tex. Civ. App. 1908), aff'd 135 S.W. 1158 (Tex. 1911). The opinion was written by a judge named William S. Fly.

  In this case, a woman in San Antonio, Texas sent a Western Union telegram in Spanish to her husband in Mexico. The telegram stated that her newborn children were ill and likely would die, and asked the husband to come to San Antonio to take care of her. Western Union failed to deliver the message, and the woman sued Western Union for her pain and suffering when her husband did not arrive. The established rule at the time was that the telegraph company could be liable for mental anguish damages arising from a failure to deliver a telegram correctly if the company knew or should have known the importance of the message.

  In its defense, Western Union argued that messages in a foreign language were like encrypted messages, or, as they termed it, "cipher messages." Telegraph customers often encrypted their messages with simple encryption schemes to protect the privacy of their communications. Telegraph companies were not liable for the consequences of misdelivered encrypted communications: By their nature, the importance of such communications was not clear to the telegraph company. Writing for the court, Judge Fly rejected the metaphor and offered the following analysis:
  We do not think a message in a foreign tongue for delivery in a country where that tongue is written and spoken can be placed in the same category as a cipher message. That kind of message is sent for the purpose of concealing from the telegraph company, as well as all other parties, except the person to whom it is sent, the purport of the message. The telegraph company, not being in possession of the key to their meaning, cannot possibly understand such telegrams, and is under no obligation to make any inquiries in regard to them. In fact disclosure of their meaning would defeat their very object in sending them. The telegram, however, to a person in a foreign country in the language of that country, is not intended to conceal, but that language is used as the usual vehicle of thought and desire, as being easier, not only to be comprehended by the person to whom it is sent, but easier to be received and understood by the agents of the telegraphic company receiving it in the foreign country. Telegraph companies hold themselves out as being ready and competent to send messages to all parts of the world in the different languages, and to hold that it is a defense to an action for negligence to prove that the receiving agent of a telegraph company did not understand the language in which the message was couched would place it in the power of such company to almost paralyze the commerce of the world by its negligence with immunity, because of a failure to furnish capable agents to carry on the business it is accepting.
  No requirement that messages received by it shall be in the English language was attempted to be shown by appellant, and by its acceptance of messages in foreign languages it is holding itself out as being capable of handling them in a judicious and expeditious manner, and it would be evidence of inefficient service on its part to handle messages accepted by it, if it shows that it could not tell a rush message in a foreign language from one not so urgent. The duty rests on it to give matters pertaining to life and death the precedence in service, and, if its agents cannot tell one from the other because it is not couched in the English language, it is attempting to do that which it knows it cannot do, and should be held liable for its negligence in connection therewith. By the slightest diligence appellant's receiving agent could have ascertained the urgency of the telegram. No effort was made to ascertain the purport of the message.
  It is undoubtedly the duty of a telegraph company to deliver all messages with reasonable dispatch, the main reason for adopting telegraphic communication being the desire for rapidity and great dispatch, and, if there is any sound reason for placing liability for failure to deliver in a reasonable time on the condition of the telegraph company's knowledge of the importance of the telegram, which the writer does not believe, there can be no reason for holding that a telegraph company cannot be held liable for failure to deliver at all, because it did not understand the message. The better rule, it seems to the writer, would be to hold telegraph companies liable for the consequences of their negligence in failing to promptly deliver messages, according to the terms of the contract of transmission, whether the agents of those companies know the importance of the messages or not. This view is, however, not in consonance with the decisions of this state, wherein it is held that damages for mental anguish in this class of cases cannot be recovered unless an agent of the telegraph company had knowledge of the importance of the telegram, or was by the language of the message put upon inquiry which would have disclosed its importance. Under the operation of that rule we are of the opinion that the duty devolved upon appellant to have agents in its offices in a city of the size of San Antonio, where it is holding itself out as a transmitter of messages by telegraph to Mexico, who have intelligence and education sufficient to understand telegrams presented to them in the Spanish language, and that, if the agent did not understand that language, he should have required from the sender a translation of the message into the English language.
  Interesting, isn't it? Pretty sophisticated analysis, especially for an opinion in 1908. Does anyone know more about Justice Fly? I googled him, but didn't find much.
Frank Drackman (mail):
Why the surprise that lawyers of 1908 could write sophisticated opinions?
8.11.2005 2:26pm
Splunge (mail):
Pretty sophisticated analysis, especially for an opinion in 1908.

Indeed! It even makes you wonder whether our trogolodyte ancestors in -- oh, maybe as far back as 1787 -- might have been capable of an equally sophisticated analysis of how to form a just and lasting government...
8.11.2005 3:59pm
OrinKerr:
How could it be, given that they couldn't do their research on the Internet?
8.11.2005 4:35pm
David Berke:
His analysis disagrees with Hadley v. Baxendale.
8.11.2005 4:36pm
Splunge (mail):
Does anyone know more about Justice Fly? I googled him, but didn't find much.

Uh oh. And you say the analysis is surprisingly modern? Maybe his name was not Judge Fly but Judge McFly...
8.11.2005 5:03pm
Noel Magee:
... because of a failure to furnish capable agents to carry on the business it is accepting. ...

Anyone called a computer support line lately? Or tried to purchase something at a big box home improvement store? Apparently, this reasoning, although eminently sound, no longer applies to businesses. Capable agents are no longer necessary.
8.11.2005 5:17pm
42USC1983 (mail):
You drew a tough crowd today, Kerr. I'm not surprised a judge from 1908 could reach the result he did. Analogical reasoning is a timeless trait. Even today its presence seprates the good lawyers from the great ones.

I don't know much about the judge. Maybe he was the Richard Arnold of his day. Have you done a Westlaw seach using JU(FLY)? I assume you have research assistants. Looking up judges (I learned a ton about Musmanno - the coolest judge of all time) is the type of project I loved as an RA. Who knows - if you find something cool, you could write a short article for The Green Bag. (Hell, you had a law review article make it into HLR, so maybe it's time to lighten up a bit.)
8.11.2005 7:17pm
Mr. P:
He was pretty fly for a white guy.

Sorry.
8.12.2005 12:15am
David Berke:
I think we were all waiting for that anyway.
8.12.2005 4:06am