58 Neb. 192 | Neb. | 1899
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
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
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 á 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. Rep. [Ia.] 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., 58 Fed. Rep. 858, it was said: “Congress has not adopted the common law of England as a national municipal law. The courts of the United States have many occasions to enforce the common law, but in every instance it has been as the municipal law of the state by which the subject-matter was affected.” The decision was to the effect that the common law was not in force as a national rule, and the exaction of unreasonable charges by a common carrier was a matter to be regulated by national law, and in the absence of any such law the com
In the former decision it was determined: “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.” One of the questions presented at this time is, if it be conceded that a difference in conditions under which the services were rendered was shown, was there evidence produced during the second trial which would uphold a conclusion by the jury that the difference in the rates charged was disproportionate
Affirmed.