dissenting. .
In my opinion there was evidence which tends to support the plaintiff’s cause of action, and I think that it should have been, as it was, submitted to the jury. It appeared that the plaintiff was engaged in shipping oil, destined for export, from the oil regions in Pennsylvania to Perth Amboy. Up to September, 1888, the transportation rate was fifty-two cents per barrel, and that rate applied, whether the oil was carried in barrels or in tank cars. At that rate the plaintiff was able to ship oil- in competition with other producers. In September, 1888, the _rate for shipment in barrels was changed to sixty-six cents per barrel, while the rate was left unchanged where the oil was carried in tank cars. The evidence tended to show that, in view of the number, ownership, and management of all the tank cars in existence, the new rate was practically prohibitory of barrel .shipments from’ the Pennsylvania- oil *223regions to the seaboard, that it was designed by a competitor who influenced the defendants to impose it to have this effect, and that this was the only method of shipment practically open to- the plaintiff. Under these circumstances the plaintiff joined with others in a complaint to the Interstate Commerce Commission. Section 3 of the Interstate Commerce Act of February 4, 1887, c. 104, 24 Stat. 379, makes it “unlawful ... tó subject . . . any particular, description of traffic, to any -undue or unreasonable prejudice or disadvantage in any respect whatever,” as well as to give any person or kind of'traffic an undue preference'or advantage. The plaintiff might have brought an action for damages under §§ 8 and 9 of the act, but it chose to make complaint to the Commission, thereby electing that as the exclusive remedy. The Commission, after a hearing, adjudged that the sixty-six cent rate worked unjust discrimination against barrel shipments, and ordered the defendants to make reparation to the plaintiff and others. The amount of the reparation was afterwards ascertained. An order prescribing the tariff in the future was made, but its terms do'not seem to b’e material, as the claims-for reparation were for the time between the establishment of the discriminating rate and the making of the Commission’s order. The order for the future may or may not be a valid and enforceable one. The plaintiff’s right under that order, in the absence of a demand for tank cars, may be uncertain. We need not pursue those inquiries. Here the only question is of the right of the plaintiff to recover damages for the- alleged discriminatory rate collected from it before' and not after the order of the Commission.' The defendants declined to make the reparation ordered by the Commission, and the plaintiff sought to recover it by an action, brought under § 17 of the act, in which the defendants were entitled to a trial ■by jury. On the trial the statute makes “ the findings of fact . prima facie evidence of the matters therein stated.” They with other evidence were submitted to the jury. The jury was instructed that whether the plaintiff had been subjected to *224undue prejudice was a question of fact. The jury was further instructed as follows:
“In arriving at that conclusion, it is proper to call your attention to this point—that the mere fact that there is or may be a preference or advantage given, where refined oil is shipped in some other way—for example, in tank cars—and that a more favorable rate is given to tank car shippers, does not, in and of itself, show that such preference or advantage is undue or unreasonable within the meaning of the act. Hence it 'follows that the jury, before it can adjudge these companies to have acted unlawfully, to have subjected refined oil in barrels to any undue or unreasonable prejudice or disadvantage, must ascertain the facts and must give due regard to these facts and matters which railroad men, apart from any question arising under the statute,. would treat as calling for a preference or advantage to be given—for example, in this case, to oil shipped in such tanks. All such facts may and ought to be considered and given due weight by the jury in .forming its judgment, whether such preference' or advantage is undue or unreasonable. In the complexity of human affairs,, and especially in commercial affairs, absolute uniformity is well-nigh impossible, and some prejudice or disadvantage often occurs where men desire to act with the utmost fairness. It is, however, where such prejudice or disadvantage in interstate commerce reaches the measure of undue or unreasonable that the act makes it unlawful.
“ It will be for you, gentlemen, to apply to this question all the evidence before you in this case, in the light of all the facts and proofs, and justly, fairly and impartially to determine the question of whether this rate on refined oil in barrels between Oil City and Titusville and Perth Amboy, so established between these two companies (if you find. that, to be the fact) did subject the oil shipped in barrels to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
“If you-so find, .you will also determine to what extent was the rate undue and unreasonable, and whatever amount you *225so find under the evidence, you would be justified in allowing this plaintiff to recoup or recover upon any shipments it made and on which it has paid the undue and unreasonable amount. You will understand that it is not entitled to recover all the freight it paid, because part of it was undue and' unreasonable, but it is only such part of the freight as you find to, be undue and unreasonable that the plaintiff is entitled'to recover back, and that only upon proof to you of the amount of the shipments made by it upon which the freight was unduly and unreasonably charged.”
These instructions seem to me full and appropriate. The jury found a verdict for the plaintiff, thereby affirming that “the particular description of traffic” in which the plaintiff was engaged was subjected to “undue or unreasonable prejudice or disadvantage.” I am not persuaded that we can say, as matter of law, that there was not sufficient evidence to be submitted to the jury and to warrant the verdict. Nor do I see any.reason why the Lehigh Valley Railroad should not be held responsible. It had, with the other defendant, established a joint tariff for a continuous shipment between the States. That tariff has been found to-be discriminatory and unlawful. It has received its share of the unlawful exaction. -The eighth section of the act provides that a carrier who “ shall do, cause to be done, or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful” shall be- liable to the full amount of the damages sustained by one injured thereby! I see no escape for this defendánt from this provision.
There may have been error committed during the trial which would require that the verdict should be set aside and a new trial granted. It is not necessary for me to consider this question.- I go no further than to dissent from the judgment of the court, which in effect denies the right of the plaintiff to recover upon the evidence against any of the. defendants.
-I am authorized to say that Mr. Justice Harlan.concurs in this dissent.