Western Union Telegraph Company v. Call Publishing Company
| Decision Date | 08 March 1899 |
| Docket Number | 8610 |
| Citation | 78 N.W. 519,58 Neb. 192 |
| Parties | WESTERN UNION TELEGRAPH COMPANY v. CALL PUBLISHING COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before CORNISH, J. Affirmed.
AFFIRMED.
Estabrook & Davis and Ames & Pettis, for plaintiff in error:
In order to constitute an unjust discrimination there must be a difference in rates under substantially similar conditions as to service. (Western Union Telegraph Co. v. Call Publishing Co., 44 Neb. 326.)
Where it is shown that a difference of rates exists, but that there is a substantial difference in conditions affecting the difficulties 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. (Western Union Telegraph Co. v. Call Publishing Co., 44 Neb. 326.)
The petition is demurrable. (Swift v. Philadelphia & R. R Co., 58 F. 858; Gatton v. Chicago, R. I. & P. R Co., 63 N.W. 589 [Ia.]; Murray v. Chicago & N. W. R Co., 62 F. 24.)
John M. Stewart, contra.
References: Cox v. Lehigh Valley R. Co., 4 Int. Com. Rep. 582; In re Excessive Freight Rates, 4 Int. Com. Rep. 68; Railroad Commission of Florida v. Savannah, F. & W. R. Co., 5 Int. Com. Rep. 40; Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U.S. 263.
In this action a recovery was sought of damages alleged to have accrued to the defendant in error by reason of unjust discrimination against it and in favor of another patron of the plaintiff in error in the rates charged for contemporaneous services. There was a trial of the issues joined in the district court and the plaintiff was awarded a judgment. In an error proceeding in this court the judgment was reversed and the cause remanded. A second trial in the district court resulted in a judgment for defendant in error, and the cause has been again removed to this court by the telegraph company. The opinion rendered at the former hearing is reported in 44 Neb. 326, and contains an extended statement of the facts, to which we now refer the reader. We deem it unnecessary to again set them forth herein; as developed during the second trial, they were in the main similar to what appeared during the first. Wherein they were dissimilar or different, or such new facts as were shown at the second hearing, we will, to the extent necessary, state them in the connection in which they may be material.
The defendant in error, hereinafter designated the Call Company, purchased of the Daily State Democrat, and there was assigned to the former an "Associated Press certificate," by which it became entitled to receive daily and print certain press or news dispatches which were to be transmitted to it from Chicago by the plaintiff in error, hereinafter styled the telegraph company.
When the Call Company purchased the certificate of the Democrat it immediately opened negotiations with the Associated Press relative to the dispatches and the contract for furnishing and reception of them. It appears that as the contracts were usually made the Associated Press agreed to furnish the dispatches for a certain stated sum, which was inclusive of the charges of the telegraph company for transmission; that the former collected the whole amount and settled with the latter. The Associated Press demanded, however, that the Call Company make its own contract with the telegraph company, which was done. It is now claimed that as this was demanded by the Associated Press a compliance with such demand was an essential of the contract between it and the Call Company and it became and was a part of the consideration for such contract. To this we cannot agree. It is plainly disclosed that the Associated Press did not desire to become bound for the payment of the charges of the telegraph company for dispatches sent to the Call Company, and that this moved the demand to which we have referred; that the transaction amounted to no more than a sale of the dispatches to the Call Company and it providing the means of transmission by its own contract, and that it should do so was not elemental of the consideration between it and the Associated Press.
It is argued that the petition did not state a cause of action. The reasons given for this contention are that the pleading attacked declared upon a contract for interstate business that the regulation of such business rests exclusively with congress; that the statutes of Nebraska, by which it was sought to establish rules on the subject, were ineffective; that there was no regulative national law applicable and no rules of the common law in force or recognized as national rules or enforceable within the nation as an entirety, or within the states composing it or any one thereof, which, in the absence of statutory enactment by congress, might be invoked and be governable. In the case of Gatton v. Chicago, R. I. & P. R. Co., 63 N.W. 589, the subject of the existence in the United States of the common law as national law was discussed, and it was decided in the negative. In the opinion in Swift v. Philadelphia & R. R. Co.,...
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