In the case of Fishback v. Western Union Telegraph Company, 1895, the U.S Supreme Court ruled in favor of Western Union Telegraph Company. The plaintiff, Mr. Fishback had filed a lawsuit against Western Union for not delivering a money order to him on time which he claimed resulted in financial loss as he was unable to complete a business transaction due to this delay. However, the court held that since there were no special damages specified at the time when Mr.Fishback sent his telegram and because it was not proven that Western Union acted with negligence or malice in delaying delivery of his message; therefore they could not be held liable for any consequential damages suffered by Mr.Fishback as result of this delay.

In the dissenting opinion for Fishback v. Western Union Telegraph Company, Justice Brewer argued that the majority's decision was inconsistent with previous rulings of the court and failed to adequately consider established principles of contract law. He contended that when a company offers services to the public, it cannot arbitrarily limit its liability for negligence through contractual stipulations. Furthermore, he disagreed with the majority's assertion that telegraph companies are not common carriers and thus should not be held to similar standards of accountability. In his view, these companies provide an essential service akin to transportation or delivery firms and therefore have a duty towards their customers which they cannot evade by imposing unfair conditions in their contracts. He also pointed out inconsistencies in how different types of messages were treated under this ruling - while errors in transmitting commercial messages could lead to damages being awarded against telegraph companies, no such provision existed for personal communications despite them potentially having equal if not greater importance.