dissenting,
I do not concur in the conclusion reached by Commissioner Irvine, that there is no evidence in the bill of exceptions to sustain the verdict and judgment. The record shows without controversy that for nearly three years prior to the bringing "of this action the Call Company paid the telegraph company the sum of $75 per month for transmitting in the day-time the dispatches or reports of the Associated Press containing not exceeding 1,500 words each day, and during this period manifold copies of the dispatches were likewise delivered by the telegraph company to the State Journal Company, and the last named ■company also, in addition to said day reports, received each *343night from the Associated Press over the wires of the telegraph company dispatches not exceeding 6,500 words; that the State Journal Company paid for transmitting the -dispatches received by it during said time the sum of $125 per month, and no more. Whether the last named sum was paid for both the day and night reports or messages, -or for night reports alone, the evidence is conflicting.
Mr. C. B. Horton, the assistant superintendent of the telegraph company, in his testimony says no compensation was received for transmitting the day messages, but the •sum of $125 was paid for the night dispatches alone; that no charge was made for the day reports, but the same were furnished the State Journal Company without compensation, as a mere gratuity.
Mr. J. H. Calhoun testified that the State Journal Company paid $125 for the transmission of both the day and night reports received by it.
Mr. H. D. Hathaway, the manager of the State Journal Company, being interrogated while upon the witness stand whether anything was paid for the day reports, answered: ■“No, sir; except as we paid — it might be included in the whole arrangement.”
The fair inference to be drawn from the testimony of the last named witness is that no specified amount was collected for the day reports alone, but that the sum collected —$125 per month — was for both reports. The record discloses that the usual rate charged for night reports or messages is four times less than that paid for sending the -day reports of the same number of words. This being true, it is not reasonable to suppose that the State Journal Company would pay $125 per month for the night dispatches merely, when the Call Company was paying $75 per month for the day reports received by it.- According to the customary difference between the day and night rates, the State Journal Company, if we adoptas a basis the sum the Call Company was charged for its dispatches, should *344have paid but $75 per month, had the night reports contained 6,000 woi’ds each, instead of paying $125 per month for the transmission of dispatches of 5,600 words each, as is claimed by the telegraph company. In my view the-plaintiff was entitled to a verdict for some amount whether the State Journal Company paid $125 for both the day and night dispatches or for the night reports alone. If, as contended by the telegraph company, nothing was charged the State Journal Company for the day reports, and the-evidence before the jury was sufficient to authorize them in so finding, then it is patent that the plaintiff in error did not render the services to the Call Company on the-same terms it did to another patron, but unjustly and unlawfully discriminated in its rates against the defendant in error. The evidence shows that the State Journal Company had been receiving the day reports of the Associated Press for a long time prior to the date the Call Company commenced taking them, and no additional trouble, costs,, and expense were incurred by the telegraph company in furnishing the reports to the defendant in error, inasmuch as the day reports were taken off the wires on manifold! paper and one copy thereof was delivered to the State Journal Company and the other copy to the defendant in error. It is true that after the Call Company began taking the dispatches the plaintiff in error put up another wire between Lincoln and Omaha, but the evidence shows that this was-done chiefly to provide additional facilities for taking care-of the rapid increase of its commercial business. Prior to> the time the Democrat, the predecessor of the Call, commenced taking the dispatches the day reports were usually delivered to the Journal Company about 4 o’clock in the afternoon, which was no later than they are now received-These reports were sometimes forwarded to the Journal Company by mail, but the common practice, as well as the-most convenient mode for the telegraph company, was to send them over the wire. Now there is no relay at. *345Omaha, but the day reports are received at Lincoln at the same time as in Omaha, but, so far as the proofs show, the trouble and expense to the telegraph company was not increased by the change but lessened. That formerly it was under no contract to deliver the day reports at a particular hour is unimportant, inasmuch as the fact remains that there has been no substantial change in the time of delivery since the contract with the publishers of the Democrat was made. Nor is it material that the Call is au evening paper and the Journal is published in the morning, and that the latter has no use for the day report until late in the afternoon or night. There is a total lack of evidence to show that these facts, or any of them, in the least affected the expense or difficulty of performing the service.
It also appears by the testimony of Mr. Cox, one of the proprietors of the Call, and Mr. Calhoun, formerly managing editor of the Journal, that the day dispatches appear regularly and in full in the last named paper. It is said, however, that the Journal Company, without any extra cost to it, might have taken the dispatches from the Call instead of depending upon the telegraph company. This could have been done only to the extent the Call uses them. Mr. Cox testifies, and it is undisputed, that the Call did not always contain the full report, or even half of it. Sometimes it is received too late for use in the evening paper. AYe have not overlooked the fact that the Call contract contains a clause to the effect that the telegraph company should not deliver the day report to any other paper in Lincoln until after the Call goes to press. This provision is of no validity. A telegraph company is a common carrier and must treat all persons alike. It cannot discriminate against its patrons, or give one paper a monopoly of the Associated Press dispatches. It could no more do that than a railroad company could contract with A to carry his stock from Lincoln to South Omaha and *346provide therein that the stock of B, consigned to the same place and carried on the same train, shall not be delivered until A’s stock has been delivered and sold. Again, the stipulation in the Call contract did not affect the Journal Company, for the reason that the latter had no use for the day report until in the evening. We are convinced that the services rendered the defendant in error and the State Journal Company, as to the day dispatches, were under like conditions as to costs and expense; therefore, upon the testimony of Mr. Horton alone, the plaintiff was entitled to recover. The rule is where a telegraph company charges one person a higher rate than it exacts from another for the transmission of dispatches under like conditions, the difference between the charges is the measure of damages the one who has been discriminated against is entitled to recover. (Cook v. Chicago, R. I. & P. R. Co., 81 Ia., 551; Scofield v. Lake Shore & M. S. R. Co., 43 O. St., 571; Louisville & E. St. L. C. R. Co., v. Wilson, 32 N. E. Rep. [Ind.], 311; Hays v. Pennsylvania R. Co., 12 Fed. Rep., 309; Samuels v. Louisville & N. R. Co., 31 Fed. Rep., 57.) The plaintiff below was entitled to a verdict, even though the State Journal Company paid $125 per month for both the day and night reports.
It will be observed that the Call Company was required to pay for the transmission of its dispatches at the rate of $5 per month for each one hundred words, while the State Journal was charged for the messages received by it a little over $1.76 per month per hundred words. There is no room for doubt that this difference in rates would constitute unjust discrimination against the Call Company, for which it would be entitled to recover the difference between the amount paid by it and the more favorable rates granted the State Journal Company were it not for the fact that all the messages to the two companies were not transmitted by the plaintiff in error under like conditions as to service. What were the differences in conditions which affected the *347cost or expense of the transmission of the messages? The day reports, as we have already seen, were sent to each of the two patrons under practically similar conditions and at the same time. As to the day reports, as we have seen, there could be no difference in the costs or expense of the service. The night and day messages or reports were transmitted under conditions materially different. It was shown that such differences in conditions necessarily made the tolls charged for the night reports less than the rates received for the service rendered in transmitting the day messages of the same number of words. I do not agree with my associates that there was no evidence of any character showing to what extent the difference in conditions affected the telegraph company. On the contrary, I am fully persuaded that there is such evidence in the record and that it shows the difference in the rates charged was not proportionate to the difference in the conditions which affected the expense of performing the service.
Mr. C. B. Horton, the witness already mentioned, testified upon this branch of the case as follows:
Q,. What, if any, difference is there in the case of operating or handling news at night and during the day — what difference in cost and in the convenience? State wherein it is.
A. In the day-time, as everybody knows, our wires are loaded with important business, board of trade grain messages, and we have wires leased during those hours and they are filled and occupied. At night we have idle wires and we utilize them. A lower rate has always been made in the night service. On press reports it is about one to four, one of day to four at night.
Q. One word at day to four at night?
A. Yes, sir; T believe that is the rule in all of our contracts.
Q,. Whether it is by the word or by the job?
A. Yes, sir.
*348The foregoing evidence was sufficient to authorize the jury in finding the difference in rates between the day and night reports. The Call Company should not have been charged more than four times the rates charged for the night messages. The difference between the rates paid and the tolls which should have been charged for service rendered the defendant in error was fully established by the evidence. It paid $5 for each one hundred words daily per month, when the rate should have been not exceeding $4. There was, therefore, an unjust discrimination of $1 per hundred words per month, which amounted to $15 per month. This sum was overpaid each month for thirty-four months, making an aggregate of $510, to which should be added interest at seven per cent on each payment from the date thereof until the rendition of the judgment in the court below, amounting to $83.30. So under this view of the case the Call Company was entitled to a verdict for at least the sum of $593.30, while if as the telegraph company contends, and there is some evidence in the record tending to show that the Journal Company paid nothing for the day reports, the verdict is none too large-The judgment should be affirmed, or at least it should be allowed to stand upon the defendant in error entering a remittitur for the amount the verdict is in excess of $593.30-