On Application for Rehearing.
PER CURIAM.Since the foregoing opinion Avas handed doAvn, there has been published the opinion of the Supreme Court of the United States in the case of Chicago & Alton R. R. Co. v. Nathaniel T. Kirby, report*627ed in 225 U. S. 155, 2 Sup. Ct. 649, 56 L. Ed. 1033, which, has been brought to our attention for the first time on application for rehearing. Under the construction there given to the federal statute, substantially identical with the Alabama statute (Code, § 5540), the special contract relied on for recovery in this case is void, provided we follow that opinion in the construction of the state statute. This, we feel, we should do.
The state statute (Code, § 5540) thus reads: “If any railroad company or other common carrier shall directly or indirectly make or give any undue dr unreasonable preference or advantage to any particular person, firm, corporation, or locality, or subject any particular person, firm, or corporation, or locality to any undue or unreasonable prejudice or disadvantage in any respect, whatsoever, such railroad or common carrier shall be guilty of unjust discrimination, which is hereby prohibited and declared unlawful, and shall be liable to the state in a penalty of not less than five hundred dollars* nor more than five thousand dollars for each offense.” And the kindred section of the federal statute, from which ours was evidently borrowed, thus reads: “That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or any particular description of traffic in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic to any undue or' unreasonable prejudice or disadvantage in any respect Avhatever.” — Volume 3,. Fed. Statutes, annotated.
The headnotes of the aforementioned decision of the United States Supreme Court, construing the above statute, make it clear, Avithout further quotation, that. *628the facts of the case there considered are so materially .similar to those here that the identical question which confronted' them now confronts us. The first and second headnotes of that opinion, which we quote below, .sufficiently indicate this, to wit: First, “An undue and unreasonable preference forbidden by the Act of February 4, 1887 (24 Stat. at L. 879, c. 104 [U. S. Comp. Stat. Supp. 1911, p. 1284] §§ 3, 6, and the Act of February 19, 1903 (32 Stat. at L. 847, c. 708 [U. S. Comp. St. Supp. 1911, p. 1309]), is accorded a shipper by a special agreement by which a carrier undertakes to expedite a car load shipment of horses over its own lines, so that it will reach the point of connection with the next ■carrier in time to be carried by a special fast stock train leaving that point the next morning; the shipper being •charged the regular established joint through rates, which made no provision for such special service.” Second. “A shipper cannot recover damages for a breach of the carrier’s special agreement by which, contrary to the act of February 4, 1887, § § 3, 6, and the Act of February 19, 1903, it undertook, for the regular established .joint through rate, to expedite a car load shipment of horses over its oavu line, so that it Avould reach the point of connection with the next carrier in time to be carried by a special fast stock train, although the shipper did not see or know that the established rates and schedules made no provision for such special service.”
Upon this authority, the application for rehearing is .granted, and the cause is reversed.
Reversed and remanded.