W. Union Tel. Co. v. Call Pub. Co.

• Decision Date: 08 March 1895
• Parties: WESTERN UNION TEL. CO. v. CALL PUB. CO.
• Court: Nebraska Supreme Court

44 Neb. 326

62 N.W. 506

WESTERN UNION TEL. CO.

v.CALL PUB. CO.

Supreme Court of Nebraska.

March 8, 1895.

Syllabus by the Court.

1. A telegraph company is a public carrier of intelligence, with rights and duties analogous to those of a public carrier of goods or passengers.

2. Section 7, art. 11, of our constitution limits the legislature in the regulation of telegraph companies to the correction of abuses and prevention of unjust discrimination.

3. Not all discrimination in rates is unjust. In order to constitute an unjust discrimination, there must be a difference in rates under substantially similar conditions as to services.

4. Chapter 89a, Comp. St., regulating telegraph companies, prohibits--First, all partiality or discrimination between patrons in the handling of business; second, all partiality or discrimination in rates for similar services; third, partiality or discrimination as to terms of payment or delivery; and, fourth, all discrimination in favor of persons transmitting dispatches to the greater distance.

5. In so far as the act referred to forbids unjust discrimination, and disregarding the penalties imposed by the act, it merely declares principles recognized by the common law.

6. Either under the common law or the statute, a telegraph company must charge for its services no more than a reasonable rate; under like conditions, it must render its services to all patrons on equal terms; and it must not so discriminate in its rates to different patrons as to give one an undue preference over another.

7. It is not an undue preference to make to one patron a less rate than to another, where there exist differences in conditions affecting the expense or difficulty of performing the service which fairly justify a difference in rates.

8. Where it is shown that a difference in rates exists, but that there is also a substantial difference in conditions affecting the difficulty or expense of performing the service, no cause of action arises without evidence to show that the difference in rates is disproportionate to the difference in conditions. A jury cannot be permitted to find such disproportion without evidence.

Error to district court, Lancaster county; Tibbets, Judge.

Action by the Call Publishing Company against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Reversed.

H. D. Estabrook and Harwood, Ames & Pettis, for plaintiff in error.

Wm. Leese and John M. Stewart, for defendant in error.

IRVINE, C.

The Call Publishing Company is a corporation publishing a daily newspaper in the city of Lincoln. It brought this suit against the Western Union Telegraph Company, alleging that since July 1, 1888, it had been receiving from the telegraph company the dispatches of the Associated Press collected by that organization at Chicago and transmitted daily from Chicago to Lincoln, as well as to other cities; that there existed between the Associated Press and the telegraph company a contract which prevented the Call Company from procuring its news otherwise than over the lines of the telegraph company; that during said period the telegraph company had charged and collected from the Call Company $75 per month for transmitting such dispatches, not exceeding 1,500 words each day; that the State Journal Company published in the city of Lincoln a daily newspaper, which had been during the whole of such period, and prior thereto, receiving the same dispatches; that during the whole of said period the telegraph company unjustly discriminated in favor of the State Journal Company, and against the Call Company, and gave to the State Journal Company an undue advantage, in that it charged the State Journal Company for the same, like, and contemporaneous services as were rendered to the Call Company only the sum of $1.50 per 100 words daily per month; that the amount charged and collected by the telegraph company from the Call Company was excessive and unjust to the amount of the excess of the charge to it over that to the State Journal Company; that, immediately upon discovering such discrimination, the Call Company demanded repayment of such excess, which was refused. Damages were alleged on this account in the sum of $1,962, for which judgment was prayed. The telegraph company admitted the charges made to the Call Company, and admitted that it charged the State Journal Company for its dispatches $125 per month, but denied that it had given the State Journal Company any undue advantage, or that it had unjustly discriminated in favor of the State Journal Company. It further alleged that the Call Company published an evening paper, and received over the telegraph company's lines dispatches not exceeding 1,500 words per day, all transmitted and delivered in the daytime, and that this charge was fair and reasonable, and was no greater than was charged other persons for similar services. It further alleged that it had accepted the provisions of the act of congress of 1866 in regard to telegraph companies, and pleaded that the subject-matter of the action was within the exclusive jurisdiction of the federal courts; and it further pleaded that it at all times had been ready to transmit all dispatches with impartiality in the order in which they were received, and had ever been willing to offer the same and equal facilities to the plaintiff and all publishers of newspapers, and to furnish dispatches for publication to all newspapers on the same conditions as to payment and delivery. The reply was a general denial. There was a verdict for the plaintiff for $975, upon which judgment was rendered, and the telegraph company prosecutes error. The errors assigned relate to the instructions given and refused, and to the sufficiency of the evidence. The assignments of error in regard to the instructions group themselves in the same manner as in the case of Hiatt v. Kinkaid (Neb.) 58 N. W. 700. One assignment is directed against the instructions given by the court en masse. Another is directed against those asked by the telegraph company and refused. Some of those given by the court were manifestly correct, and at least one asked by the telegraph company was substantially covered by the court's charge. These assignments must therefore be overruled, and we are remitted, in an examination of the case, to a consideration of the sufficiency of the evidence.

The evidence shows, without substantial conflict, that prior to July, 1888, a newspaper had been published in the city of Lincoln known as the “State Democrat.” This paper had acquired what is styled a “franchise” in the Northwestern Associated Press, and had been receiving the dispatches of that organization, paying to the Associated Press $20 per month therefor, and paying to the telegraph company for transmitting and deliveringthe dispatches $75 per month for a maximum of 1,400 words per day. The manner in which this contract was brought about was that Mr. Calhoun, the proprietor of the State Democrat, negotiated with the manager of the press association for procuring its news, and was by the manager informed that he should first make terms with the telegraph company for transmitting the messages. Negotiations were entered into between Mr. Calhoun and the telegraph company, resulting in an offer by the telegraph company to transmit 1,400 words per day for $75 per month, and this offer was accepted by Mr. Calhoun. About July 1, 1888, Mr. Calhoun sold his paper to the Call Company, and assigned to that company the franchise which he had acquired in the Northwestern Associated Press. No new contract is disclosed between the Call Company and the telegraph company, but the telegraph company continued to deliver and the Call to receive the dispatches in the same manner as they had been transmitted and received to and by the Democrat before sale, and the Call Company paid the rate of $75 per month. The paper published by the Call Company was an evening paper, published between 3 and 4 o'clock in the afternoon. The State Journal Company published a morning paper. It was also a member of the Associated Press, and received over the wires of the telegraph company dispatches not to exceed 5,600 words a day, for which it paid, during this period, the sum of $125 per month. It also was a member of the United Press, another association for the collection of news, and received through that association, over the wires of the Postal Telegraph Company, from 7,500 to 8,000 words per day, for which it paid to the Postal Company $200. The Associated Press transmits its news in two groups, called “reports.” The day report is transmitted between 11 a. m. and about 2:30 p. m., and is for the especial benefit of evening papers. It is this report which the Call Company received. The night report is usually transmitted at night, and generally between 7 p. m. and 3 a. m., and is for the especial benefit of morning papers. The Journal Company's contract strictly included only the night report, but for many years it has in fact received both day and night reports. Prior to the acquisition by the Democrat of its franchise in the Associated Press, the day report to the Journal was relayed at Omaha, whence it was usually transmitted to Lincoln by wire, but sometimes by mail. The Journal Company sent to the office of the telegraph company for this report, and usually obtained it, about 4 p. m. After the Democrat's acquisition of the franchise, the day report was transmitted from Chicago directly, except when the weather or other influences required a relay at Omaha. It was sent in time for use by the afternoon paper, was committed to writing on manifold paper, one copy delivered to the Democrat, and, after its sale, to the Call, and the other to the Journal. The Journal was not permitted to use this report until after it had been published in the Call. It was also shown that in order to be of any service to the Call the day report must be delivered to it...