text:
    DAMAGES — MASTER AND SERVANT — VERDICT*
    [Lucas (6th) Circuit Court,
    October 7, 1905.]
    Parker, Haynes and Wildman, JJ.
    Lake Shore & M. S. Ry. v. John Burtscher.
    Question of Superior or Fellow Servant is for the Jury.
    In an action against a railway company for personal injuries to the plain-tiff resulting from the negligence of defendant’s servant, the question of whether a tower man employed by such railway company who has charge of the trains as they come into the yard and of the giving of various signals by semaphore and by lights, etc., is a fellow servant of a locomotive engineer employed by such company, a superior servant, or a vice principal, is a mixed question of law and fact to go to the jury.
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.
    E. D. Potter, for plaintiff in error.
    C. A. Thatcher, for defendant in error:
    Fellow servant doctrine, etc. Little Miami By. v. Stevens, 20 Ohio 416; Berea Stone Co. v. Kraft, 31 Ohio St. 287 [27 Am. Rep. 510]; Dick v. Bailway, 38 Ohio St. 389; Cleveland, L. <& W. By. v. Shanower, 70 Ohio St. 166 [71 N. E. Rep. 279]; Clev. C. & C. By. v. Keary, 3 Ohio St. 201; Pitts. Ft. W. & C. By. v. Lewis, 33 Ohio St. 196; Bailway v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11]; Toomey v. Stamping Co. 11 Cire. Dec. 216 (20 R. 183); Cincinnati & M. V. By. v. Thompson, 12 Cire. Dee. 326 (21 R. 778) ; Muench v. Traction Co. 16 Dec. 463; Chicago & A. By. v. Wise, 106 Ill. App. 174; affirmed, Chicago & A. By. v. Wise, 206 Ill. 453 [69 N. E. Rep. 500]; Little Bock & M. By. v. Barry, 58 Ark. 198 [23 S. "W. Rep. 1097; 25 L. R. A. 386]; Pitts. C. <& St. L. By. v. Banney, 37 Ohio St. 665; Balt. & O. By. v. Camp, 8 O. F. D. 391 [65 Fed. Rep. 952; 13 C. C. A. 233; 31U. S. App. 213]; Hankins v. Bailway, 142 N. Y. 416 [37 N. E. Rep. 466; 25 L. R. A. 396; 40 Am. St. Rep. 616]; Felton v. Ha/rbeson, 104 Fed. Rep. 737 [44 C. C. A. 188]; Lewis v. Seifert, 116 Pa. St. 628 [11 Atl. Rep. 514; 2 Am. St. Rep. 631]; Chicago, M. & St. P. By. v. Boss„ 112 U. S. 377 [5 Sup. Ct. Rep. 184; 28 L. Ed. 787]; Lake Shore & M. S. By. v. Feller, 11 Cire. Dee. 799 (21 R. 605); Western Union Tel. Co. v„ Burgess, 12 O. F. D. 668 [108 Fed. Rep. 26; 47 C. C. A. 168]; Northern Pac. By. v. Charless, 51 Fed. Rep. 562 [2 C. C. A. 380; 7 U. S. App. 887]; Pitts. & L. E. By. v. Johnston, 1 O. S. C. D. 314(33 Bull. 248); Dean v. King, 22 Ohio St. 118; Muhlenburg v. Florence, 5 Ohio 245; Lewis v.
      Bank, 12 Ohio 132 [40 Am. Dec. 469]French v. Millard, 2 Ohio St. 44; McGatrick v. Wason, 4 Ohio St. 566.
   WILDMAN, J.

This is a proceeding in error to reverse the judgment of the court of common pleas of Lucas county, on a verdict in behalf of the plaintiff below in the amount of $13,500. The record is very voluminous and a large part of the time of the court has been occupied in its consideration. At the conclusion of the plaintiff’s testimony, a motion was made by the defendant to arrest the testimony from the jury and direct a verdict, upon the ground that there was no actionable negligence shown against the company and the further ground that the negligence of the plaintiff himself contributed to the injury complained of. This motion was renewed by the defendant at the close of the introduction of the evidence. The motions were overruled by the court below, the case went to the jury, and the jury rendered the verdict, which I have stated.

The substantial issues, as raised by the pleadings and receiving the ■attention of the parties on the trial were, first, whether one MeGrevy, ■an employe of the defendant company, was the superior of Mr. Burtscher, the plaintiff; second, whether MeGrevy was guilty of negligence directly causing the injury to the plaintiff; and; third, whether or not the plaintiff contributed to the injury by his .own negligence.

This is the second time that this case has been brought to the attention of this court. I was not, on the other occasion, a member of the court as then constituted, and have had no familiarity with the case, except as I gather it from the present record and consultation with the other judges of the court, my associates. I will not attempt any elaborate review of the evidence bearing upon the two questions last mentioned, the claim of contributory negligence and the claim of negligence on the part of MeGrevy. It is sufficient to say that after a very careful examination of the present record, which has required the reading of the whole of it, the court are unanimously of the opinion that there was a fair question of fact to be presented to the jury and considered by them upon each of these issues, the issue of claimed negligence of Mr. Me-Grevy, the tower man, and the claim of contributory negligence of the plaintiff.

When the case was in this court before for review of the record, the case as then presented seemed to the circuit court to warrant the ¡holding which was made, that the verdict of the jury was not justified by the evidence; that the disclosed facts showed contributory negligence ■on tbe part of tbe plaintiff and failed to show negligence of tbe defendant company through its servant McGrevy. There seems to have been a substantial change in the evidence, not necessarily a contradiction, but a supplementing, a supplying of facts necessary to a Better comprehension of the conditions existing at the time of the accident to Burtseher. Counsel and parties in the case are so familiar with the .general facts that it is not necessary, perhaps, that a review of them be given.' The statement in the opinion of Judge Parker upon the former hearing would suffice to make the present one .intelligible; but it is perhaps well to say that Burtseher was injured while in the employ of the ■company as an engineer; that he was at the time engaged in taking a train of cars off upon certain of the tracks in the Toledo yard, which have been variously designated in the record here, and which may be •described as principally consisting of main or other tracks, but including also a track known as a cross over and certain side tracks. He had come into the yard for the night, and in passing over this cross over track to one of the side tracks, where it was intended to leave the train for the night, by the mistake of the switchman, and whose mistake it is not important to ascertain, the train started to go upon a track which it was not intended to occupy, whereupon the conductor instructed the engineer to back out. The engine was at the eastward end of the train, the train had been moving to the west; the tender of the engine was toward the east, so that the engine was backing when the engineer proceeded to obey the order of his conductor, and in backing he proceeded upon the cross over track, or was about to proceed on it toward what is known as the west bound track of the two main tracks that ‘have been referred to. Some distance to the east, McGrevy, the other employe herein before mentioned, was engaged as a tower man, having some •charge of the tracks, or trains as they came into the yard, and the giving of various signals, by semaphore or by lights, and perhaps in ■some other ways, a matter to which I will invite attention later.

As the train on which Burtseher was engineer had either begun to back or was about to back, an incoming train from the east signaled by whistle for the switch, and the tower man thereupon changed the switch lights from red to white. At the time when the train on which Burt-■scher was engineer had passed into the yard, he had been given the red signal, and, as he claims, the signals remained red at the time he began to back, which, if a fact, as testified to by several witnesses, would .justify him in the free use of the yard for switching purposes before passing upon this cross over track.

An important question which arose upon the former hearing, and which has also arisen upon this, is as to the precise location and; direction of movements of the train on which Bursteher was the engineer at the time when the signal was changed from red to white, and it is-upon this point that the evidence seems much clearer to the minds of the court than upon the former trial. Burtscher testifies positively that at the time when he began to back, the red lights were still showing. He claims that he did not see the white light at all, and indeed, if he began to back while the red light was still showing, it is reasonable to suppose that as he proceeded in an angling direction across the track the thrust of the tank attached to his engine, and which, as I have said, was to the eastward of the engine, would obstruct his view of the switch light. The-first intimation he had of any danger came from his fireman, who called out some words of warning.

Upon the change of the lights by the tower man, the engineer in charge of the engine attached to the train approaching from the east proceeded on his course; he was at first proceeding with considerable speed, but that speed was slackened until, as he claims, I believe, his engine had come practically to a stop, perhaps to a full stop, at the time when the two trains collided.

When Burtscher discovered that it was impossible to avoid a collision, having taken all the precautions that were in- his power for the stopping of his train, he attempted to escape through the cab window,, and in doing so, he received the injury of which he complains.

It is the view of the court upon the evidence as now presented,, taking the testimony of Burtscher that his train was in motion, that he had begun' to back before the white light was thrown against him,, corroborated as we believe it is by the result of a careful examination of the relative speeds of the two trains and their location, tha^ it is improbable that Burtscher’s train moved the entire distance from the point where it had stopped when the conductor gave the order to back to the’ point of the collision, after the white light was thrown, and we think that the jury were justified in coming to the conclusion, as they probably did, that the white light was thrown after Burtscher had begun ‘ to back. If this is true, without any further consideration of the question, it would seem to relieve Burtscher of any charge'of contributory negligence. And úpon precisely the same condition, and because of the-same fact, the situation is changed as regards the conduct of the tower man himself. The tower man’s testimony upon the other trial was not ■ altogether clear' that the white light was thrown before the, backing began. Upon the present trial it was very vague and uncertain. He ¡does not know .whether Burtscher’s train was moving or standing still; at tbe time when, tbe white light was thrown. He knew this, that Burtscher’s train had come into the yard and that as long as the red light was showing Burtscher had the right to use this cross over track to the fullest extent. Under these circumstances, we think it became a fair question whether the tower man was not negligent in throwing the white light so as to permit the progress of the train from the east. He threw the white light; whether he was negligent or not is not a question for the court. We have no disposition to invade the province of the jury; and we do not conclude that the finding of the jury in this respect is so clearly against the evidence as to warrant a reversal.

More emphasis was placed by counsel in argument upon the remaining question, and that is the question whether or not the tower man stood toward Burtscher in such a relation as to make the company liable for the tower man’s negligence; or whether he was merely a fellow servant.

Upon the former hearing, the judge announcing the opinion of the court suggested that this was a mixed question, one which ought to be permitted to go to the jury; that is, the determination whether the tower man had any authority over Burtscher; and to that opinion we are still disposed to adhere.

It was argued, going back for a moment, by counsel for the plaintiff in error, that Burtscher had testified, and it was the theory of Burtscher’s counsel below, that even if the white light was thrown be-forq he began to back, and if he knew that the white light was showing, he had a right to back as far to the eastward as a certain point which has been designated as the inner tower; and 'it is claimed in behalf of the plaintiff in error that if that be so, the tower man, knowing of that custom, knew also of another incident to the custom, that the engineer of the incoming train, by virtue of the custom, would stop at the inner tower, would not come into the yard, would not come to the point where the collision occurred, so that Burtscher would be defeated in his claim of negligence of the tower man by the very theory that he was asserting, which would excuse himself or exonerate himself from any claim of negligence contributing to his injury.

But the trouble with that argument, as the court considers it, is that we do not know that the jury adopted this theory of Burtscher or of Burtscher’s counsel. The jury were entitled to a consideration of all of the evidence in the case, whether offered by the plaintiff or defendant. They were entitled to consider all the theories argued, and peradventure the jury may have failed to find that the custom was as claimed by Burtscher’s counsel or by Burtscher. There was a conflict of evidence upon that point; it was by no means a settled and undisputed proposition; so that the jury may well have found that there was no such custom; or -they may have failed to find there was such- a custom; and they may have based their verdict upon the other point, to which I have called attention, that the white light was not in fact shown until after Burtscher and his train had begun the eastward movement; and they may have found that it was the negligence of the tower man then to change the lights.

It may be said in passing that it is well settled by the adjudications, both in this state and of those elsewhere, that if the tower man was negligent, and if his relation was such to the company and to Burtscher as to make the company responsible for his negligence, if his negligence stood alonfe, without the negligence of any other employe concurring, then the responsibility of the company would not be lessened by the concurring negligence of some coemploye, some fellow servant of Burt-scher, as, for instance, engineer Fry of the west bound train. I need say nothing further on that point. If engineer Fry, himself, was guilty of negligence, and that negligence contributed to the unfortunate result, the injury of Burtscher, still the company would not be relieved from any liability on account of the towner man’s negligence.

Before glancing at the evidence, let me’ call attention to some of the principles which have been recognized by-the various courts of the states. In 12 Am. & Eng. Enc. of Law (2 ed.) 946, is a paragraph in which this language appears.

“An important and universally accepted restriction of the fellow-servant rule is what is known as the ‘vice principal limitation,’ which holds the master liable to one servant for the negligent performance by another of the personal duties which every master owes to his servants.

“The law imposes upon the master certain duties which concern the safety of his servants, and, while he may, of course, delegate the duties to another one, his doing so in no wise affects his responsibility for their proper performance. If one servant is injured by reason of the negligent performance of one of these duties by another servant, to whom it has been delegated by the master, the master cannot escapo liability on the ground that the negligence was that of a fellow servant. In other words, where a servant is intrusted with the performance of one of the master’s personal duties, he is, with respect to that duty, a vice principal or representative of the master, who will be liable to another servant for the negligent performance by the vice principal of ■the delegated personal duty to the same extent as for his own negligence.”

On page 948, the text writer distinguishes the relations of the vice principal and superior servant as follows:

“While the courts in some of the United States where the superior servant limitation has been adopted employ the term vice principal as meaning a superior servant, this is neither the correct nor the common use of the term. There is a marked and very clear distinction between a superior servant and a vice principal. A superior servant is, generally speaking, one who exercises authority of direction and control over other servants, and may or may not be charged with the performance of any of the master’s personal duties. On the other hand, the status of a servant as a vice principal, in the proper sense of the term, is in no wise dependent upon his rank or the grade of his employment; it depends solely and wholly upon the character of his duties. If he is charged with and is in the performance of one of the master’s personal duties, a servant is a vice principal, regardless of whether he occupies a position superior or inferior to that of other servants.”

This rule or principle has not been very clearly elucidated perhaps in any decision in Ohio. As stated by this writer, there has been a confusion in the minds of many judges as to the distinction to be observed between a vice principal and a superior servant and sometimes perhaps in some of the reasons and dicta of the judges of our own Supreme Court, there has not been kept clearly in mind this distinction. The doctrine of superior fellow servant is essentially an Ohio doctrine, although it has been adopted in several other states. It has been repudiated in many.

There is another doctrine as to the liability of the employer to the employe for the negligence of fellow servants, which has been held in some of the states, to wit, that the company is not relieved from liability by the fact that a negligent employe is not a superior, is of the same grade perhaps of the one injured, provided he is in a separate department or branch of the service, so that in the work of the injured employe he is not brought into such close relations of association with the negligent one as to make it reasonably to be expected that he assumed the hazard of such negligence when he, himself, entered upon the duty. This principle has been especially recognized by the state of Illinois, and is the basis of the two decisions cited by counsel for the defendant in error here, rendered by the Illinois supreme court and court of appeals. I have those cases before me, but I will not stop to read them. It is really but one ease that was carried from one court to the other. Chicago & Alton Ry. v. Wise, 206 Ill. 433 [69 N. E. Rep. 500] and Chicago & A. Ry. v. Wise, 106 Ill. App. 114. The reason for the citation of this case to the court is probably found in the fact that it isr about the only case that counsel have been' able to find involving the claim of negligence of a so-called “tower man,” one like McGfrevy, the employe in the case at bar, who was in charge of a tower, occupying it and having duties similar to those which were placed upon McGrevy. But the case has no application here for the reason which I have suggested, that it is based upon the con-association principle adopted and recognized by the Illinois courts. It is not held in Chicago & A. Ry. v. Wise, supra, by the Illinois courts that a tower man was the superior of the train man who was injured. But the court simply holds that he was not a fellow servant, whose negligence was assumed by the injured one, for the reason that he was in a separate department or branch of the company’s service; that is, that his relation was not so close to the injured man that it might be said that the injured man had assumed' the hazard by working with him or near him, and therefore the company was held liable.

Our own Supreme Court, on the contrary, has not adopted the con-association rule. To a limited extent the separate department principle-has been recognized by our statute of 1890, and even there it is so interwoven with the superior servant doctrine that it does not aid us in our present inquiry.

From an examination of the cases cited by the Century Digest and the various text-books to which we have had any access, there seems tq-be an almost utter chaos or conflict of authorities as to the liability or nonliability of companies for the negligence of telegraph operators, train dispatchers, switchmen and persons in like employments, having-some connection with the movement of trains whereby men upon the trains received injuries; but I think many of these, eases may be récon-ciled or accounted for by the differences in the views of the different courts upon this con-association and this separate department principle, and I will not stop to review them.

The ease of Whaalan v. Railway, 8 Ohio St. 250 is the leading Ohio-ease along the line of the rejection of the con-association rule. I read from the syllabus as follows:

“Where a servant is injured in his person through the carelessness of a fellow servant engaged in a common business and employment, and no relation of subordination or subjection existed between them, and the employer is himself guilty of no fault, such employer is not responsible for such injury.
“Where the injured party is engaged in the repair of a railroad track which is then in use for the running of trains, and the party through whose negligence the injury occurs is a hand employed on the engine and tender of a passing train, they are engaged in a common business within the scope of the above rule.’-’

On page 255 Judge Brinkerhoif speaking for the court says:

“It has been suggested, however, that this case is to be excluded from the operation of the general rule, in respect to the liability of the •employer for injury to a servant by the negligence of a fellow servant in a common employment, on the ground that the servants here were engaged in different and distinct departments of duty, having no connection with each other; and this suggestion receives some countenance from the remarks of the judges, arguendo delivering the opinion of the court in the Indiana cases above noticed.”

[My impression is that Indiana afterwards repudiated this doctrine, but I will not state it positively without a little more critical examination that I have given to the eases.]

“For although in both those cases the court hold the plaintiffs to be, under the circumstances, passengers — and contend that their decis-tions may well be sustained on that ground — yet, in their discussion of "the questions involved, they argue that the fact of the plaintiffs being employed in different and distinct departments of duty, would relieve them from the application of the general rule, although they might not 'have been passengers. The validity of this argument we, in this case, -are perhaps not called on either to affirm or deny; for, if we admit that there may be departments of duty in the business of a common employer, so distinct from each other as to require an exception to be made to the application of the general rule, still we must hold, on the authority of well considered adjudications, that this is not a case to create such exception.
“Thus the case of Farwell v. Railway, 45 Mass. (4 Metc.) 49 [38 Am. Dec. 339] was an action against the company for an injury to the •engineer of a locomotive, arising from the carelessness of a switch tender. It was held, notwithstanding the point was urged upon, and received the particular attention of, the court, that the plaintiff could not recover. But we are unable to see wherein the departments of duty of a fireman and of a track repairer are more distinct and independent •of each other than are those of an engineer and switch tender.”

The court does not indicate in any way as to what difference between •the parties would be so wide as to bring them within the rule applying in other states. We might suppose, however, that the legal department, for instance, of a railway company was so distinct from the department operating its trains, in all its functions, all its duties, as to call for the application of the con-association rule, even in Ohio; but we have had no express illustration of the distinction, which Judge Brinkerhoff by implication recognizes, Whaalan v. Railway, supra.

She superior servant doctrine, however, does obtain in Ohio, first finding recognition in the ease of Little Miami Ry. v. Stevens, 20 Ohio. 415, 416, and in the case of the Pitts. Ft. W. & C. Ry. v. Lewis, 33 Ohio St. 196, the court holding, in substance, that the question as to whether one servant is the superior of another is one to be determined by the evidence in each case. In Railway v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11] this latter principle is recognized. So far as I know there has been no rejection of this principle in later adjudications. It is true that if the facts are undisputed, it may become a question of law for the court, a question entirely for the court to determine, as to whether, in a particular case, the negligent employe was the superior of the injured one.

This brings me to an examination of some of the- evidence, to determine just what the facts are here. This is a matter which was not passed upon at the former hearing in this court, and which it, was not necessary to pass upon in the view .then entertained by this court, in the case as then presented. In the testimony of the witness Mahony, found on page 26 of this record, in describing the duties of the tower man, he says: “If he felt like letting a train come in on the north and south bound, it was his place to let them in, if he saw the tracks were clear.” Whether this witness was right in this or not, that is his evidence, and the expression implies a certain amount of discretion on the part of the tower man as to letting the train come in even if he saw the track was clear.

On page 58, the witness Atkinson was examined. He had acted in' various capacities for the Lake Shore Company, as 'switchman, pony conductor and yard master at .different times, and he says he was familiar with the construction of the tracks in the, vicinity of this tower in the year 1901, the time of this injury. He testifies on page 60 in answer to this .question: .

Q. “What if any notice was the tower man accustomed to have before letting in such train?” A. • “Why he used to have an order,if everything was all clear and all right, for to let them come ahead.”1'
Q. “From.what source.?” A, “From the yard master, or some of the assistant yard masters or something like that. ”

Now on the occasion in question there was no direct instruction.given to tbe tower man by tbe yard master. . The tower man was acting entirely in recognition and response to the signal of. the incoming train if he heard. He says he did not hear it, does not remember how his-' attention was called to it. But it seems reasonably certain that his attention was called to the approach of the west bound train, either by its whistle, or seeing or hearing it approach, and that thereupon he threw the white light, without any instruction from the yard master whatever, and this seems to have been entirely within his authority.

On page 61 this question is asked:

Q. “Ton-may tell us from your experience as a conductor, switch-man and yard master there, what duties the tower man in the year 1901, during and before November, customarily exercised in that yard?”
The court: “The question is, what did the tower man do in November 1905, what did he customarily do?” A. “If he was wanting a cross over on Swan creek, or if he was coming out Swan creek, it was' his custom for him to change those cross overs, "and let us in or out of there as he saw fit.”

The words “as he saw fit” were objected to and stricken out by the court, but the testimony stood so far as stating what his custom was in changing the cross overs and letting trains in and out. Then this question was asked:

Q. “Suppose a train wanted to go west over the regular west bound track, and for some reason it was blocked, so that it could not get out, what was the custom and^ practice* there in 1901, prior to November and including November, in the operation of the trains?” A. “In case the north bound was blocked and you wanted to send a train out over the north bound?”
Q. “Wanted to send it west?” A. “Why the tower man would block what we call tower Z and run the train over the south bound or the north track.”

Then there is some further testimony as to his general custom, but nothing that I need read. On page 63 — if I had time I would like to go further back — this question is' asked:

Q. “From whom do these orders come?” A. “From the general yard master or his assistants.” ' ■
Q. “How about the-tower man?” A. “And the tower man it was under his jurisdiction. If he would be working by the tower, conveniently, orders always come from-the tower man, if we were in the way, to get out of the way.”
,-Q. “When you reeeivéd orders from the tower man, what were the crews accustomed to do ? ” A. “ Obey those orders. ’ ’
Q. “Was there a telephone in the M C tower in the year 1901?”
[That means the Michigan Central I suppose and that was the tower occupied by McGrevy.]
A. “I believe so.”
Q, “Connected with what?” A. “The general yard master’s office, also with Swan Creek, also at Tower Z. at the intersection of the main line track and the Detroit branch tracks.”

Joseph Kilborey, the switch tender used, as I find on page 66, this language in his testimony in answer to this question:

Q. “In 1901, November, and before, what did the tower man do in the performance of his work there?” A. “Why his duty was to keep in contact with all trains and see that the movement of all the trains over the road would be right.”
Q. “Suppose a switch engine approached on the Swan creek track,. called for the cross over and at the same time one came down from the water plug track and, called for the cross over, what was the tower man in the habit of doing?” A. “One coming down and the other coming out ? Why the fellow that come out and had .cars, hold him there and make the light engine come in, let him come in.”

He seems to be speaking of the duty of the tower man as to the direction and selection of trains coming in and going out.

On page 66 we find this question:

Q. “What if any warning or notice is the tower man accustomed to give trains in the vicinity of the tower?” A. “Calling out.”

We have then evidence of signals by -the throwing of lights; we have the fact of a telephone in his office for communication with the other points; we have the fact testified to in another place as to his, throwing of the semaphore in daylight, and we have now the instructions or signals by word of mouth. Then this question is asked:

Q. “What, if any instructions have you heard the tower man give them in 1901, in the vicinity of the tower?” A. “Tell them to get out of the way this train coming.”
Q. “What did the men do when the tower man told them these things?” A. “Get out of the way for them to come on.”

On page- 67 this question is asked of the witness Moore.

Q. “From whom did the tower men receive their instructions?” A. “From Gie yard master.”
Q. “You may tell the jury what duties or what work the tower men at the M O' tower did while you were yard master?” A. “Why he operated switches and targets to a certain extent both east and west at that point and had control of them.”
Q. “Go on and explain more fully wbat the tower men were in the habit of. doing and did in carrying on their work in this tower, when you were yard master, — what were the duties of the tower men; give it fully?” A. “The duties of the tower men were to operate switches that were connected by levers in the tower.”
Q. “You may state in the practical carrying on of this work what the tower men actually did, if anything, in the matter of directing the enginemen in their work, to your knowledge as yard master, and with your approval?” A. “Enginemen in charge of engines are governed by both signals and the switches given to them by the tower men and also by signals.”
Q. “Go on and tell what if any direction by word or otherwise, they were in the habit of giving them to your knowledge, during the time you were engaged as general yard master.” A. “He had the general direction of all trains to and from the point, and also from other points, by telephone that was on his line in the yard.”
Q. “I do not understand that answer, you say he had the direction, what do you mean by that?” A. “Well the direction is this; that he could direct the train to come from Broadway or go to Broadway, by telephone, and he had the authority to do so, and he had the authority to let trains in and out, and to hold trains, according to his instructions from the yard master.
Q. “Did conditions arise there frequently when switching engines would be working in the vicinity of the tower,' and not come under the observations of the yard master, when you were yard master?” A. ■“Yes, sir.”

On page 71 this question is asked:

Q. “While you were acting as yard master what were the engine-men in the habit of doing when the tower men gave them any instructions, if they did give them such instructions, that is, to obey them or not?” A. “They were controlled by the instructions and signals.
Q. “Did they obey any of his instructions?” A. ‘‘Yes, sir.”

He says in answer to another question, — it is a very long one and I will not read it, — (partly by the court and partly by counsel).

A. “Not only over the switches he has control over, but to give him written authority and control of trains from Swan creek to Broadway. They had authority to do that. They were given instructions to give enginemen written instructions relative to the use of opposing tracks, have the authority to protect them on either track at night in the yard.”

There is a good deal more on this line. I will not attempt to call attention to alJ of it wbicb has come under our notice. I will pass along to some testimony on page 77:

Q. ■ "Would the yard master'be advised of it?” A. "No; not certain points. The yard master or assistant yard master would advise the man at Swan creek, in the tower or the man at the Michigan Central Junction in the'tower.
Q. "Don’t you know that before the man used the west bound main track for switching purposes, wouldn’t you be advised of that fact, before he began to use it?” A. "No, sir.”
Q. "That -was left entirely to the discretion of the pony -conductor?” A. "That was left entirely to the tower man.”
Q. "The tower man did not do any switching, did he?” A.. "No, sir, but he— 1
Q. "In the first place, if you desired to use the west bound main track for switching purposes, the tower man did not have anything to-do with it, in the first place he did not determine whether they were-going to use it or not?” A. "But it certainly was necessary for him to know it before he gave them the switch. ’ ’
Q. "He would be advised?” A. “He would be advised by the-conductor that wanted to use it.”
Q. "Who would advise him?” A. "Either the conductor or the enginemen. ’ ’

That goes to the custom of calling for the signals and the action of the tower map. upon receiving such notice. This seems to be cross-examination. On page 78 this question is asked, speaking of the switching of trains:

Q. “Suppose it comes through the cross over by the water plug track to the other track, how does the tower man know what they are going to use, unless he is notified?” (This has reference to the train upon which Burtseher was employed.) A. "A tower man is supposed to let a train come into the yard, without he receives instructions from the yard master.”
Q. "I am speaking of a train that has passed into the yard over the cross over and suddenly stops, he would not know what they stop-péd for?” A. "No, sir. He has no jurisdiction over them after they pass that point.”
Q. (By the court) "After they pass the water plug switch?” A. “After they'pass any point where they cannot stop them; after they pass the west block.”

This perhaps bears more directly upon the claim of negligence of' the tower man than it does to his relationship to the company or to-Burtseher. He indicates there, as testified in another place, that he'has some discretion as to the movements of trains. Then there is some-further testimony about the giving of hand signals by- the tower man.. He may give the distance signal, may throw the lights, in the day time-throw the semaphore, he .may signal by telephone, he may give written, -instructions, and he may give signals, as we have already learned, by word of mouth; he may also give signals by some motion of the hand.-

On page 91, Mr. Burtseher, the plaintiff, testifies in answer to a-question:

Q. “During the years you worked there after this tower was put: in, you may state what the tower man was in the habit of doing and accustomed to do in carrying on his work, so far as you were concerned?”' A. “Well, he had control of letting in trains and control of trains from coming into the yard, by signals, home signals and had this much control that he would — (Objection)
Q. “What did he do, do not use the word ‘control’ just what he did?” A. “He operated those signals and targets operating the switches for trains to move in either direction on that semaphore. ’ ’

I have reference to a number of pages, 90, 91, 92, 100, but I will not stop to read from them. On page 115 this question is asked.

Q. “During the progress of your work there for several years you worked in the vicinity of that tower, what if any practice was there as to the tower man giving verbal notice or word from the tower?” A. “ I have received it. ”
Q. “Giving instructions by voice, by calling out from the tower?’” A. “Why, yes, from the tower.”
Q. , “Was he accustomed to do it?” A. “Quite frequently.”
Q. What were some of those things, -in what instances were those?” A. “Why if there was some engine would be in the way switching through that portion of the track in his jurisdiction, if it became necessary—
The Court: Q. “What did he tell you — to get out of the way?’”
A. “Why, yes. He would say ‘get out of the way’ on the stone run or any run come, he would say ‘go ahead.’ ”
Mr. Thatcher: Q. “What would you do under those circumstances?” A. “I would go as far as I could, whenever my eon-ductor — get out of the way if I could.”
Q. “Did you do this when the yard master or his assistants were present?” A. “Yes, sir.”
Q. “When those orders were given?” A. “Yes, sir.”
Q. “Where the yard master could hear the orders?” A. “Ices, sir.”

James B. Cryan, an assistant yard master, testified'in relation to the same matter. After testifying that the pony enginemen and crews were under the authority and instructions of the yard master and as-' sistants, the question was asked.

Q. “Who else was accustomed to give instructions, if any one, to the crews of pony engines about their work there?” A. “Nobody but the yard master in particular. Of course he might send somebody out to notify them, some switch tender to tell them what to do.”
Q. “How about the tower men?” A. “Or the tower men if they were working in that vicinity.”
Q. “What did the tower men do in cases of that kind then?” A. “He would notify them, whatever the instructions were, if they were to get out of the way, clear the track, he would notify them.”
Q. “Suppose the yard master’s office did not have notice that a train was approaching, but there were several switch engines moving in the vicinity of the tower, in different directions, where the tower man has the switches to be operated from his levers, who directed the movements of the switch engines on such occasions?” A. “The-tower man. ’ ’
Q. “What were the engine crews and yard conductors and brakemen accustomed to do under those conditions?” A. “They would have to obey him.”
Q. “Obey the tower man?” A. “Yes, sir.”
Q. “Was the tower man in the habit of keeping things moving through there, is that his business?” A. “That is his business.”
Q. “Avoiding blocking of tracks and so on?” A. “Yes, sir.”

It is pretty hard to distinguish from this testimony and a great deal more of it» along the same line, between the duties of what we might call a tower man and a sort of a vice yard master, or vice company, or vice principal, or we might say, to put it in another form, that his duties are very similar on a small scale to 'those of a train dispatcher. He does not have the general direction of the movement of trains, but so far as the yard is concerned, in permitting the trains to come in there and go out of the yard, he seems to have control in the absence of the yard master, or, as possibly appears in some cases, when the yard master is present, the yard master not interfering with his giving some directions. .

There is much more of this evidence that bears upon this question that I shduld be'glad to read in . view of the importance of the question, and perhaps its practical novelty in this state, but I am taking so much time that I will be obliged to omit an examination of much of the testimony that I have read, and which I think bears upon the point.

The testimony of the witness Arnold on pages 121 and 122 may be íeferred to. Some of the testimony of Mr. McGrevy indicates that he had some discretion, some power, such as has been testified to by other witnesses. On page 203 this testimony appears:

Q. “How did you as tower man, know whether the trainmen were going to use the west bound main track for switching purposes or any particular movements?” A. “You do not know unless you are told.”
Q. “According to the practice and custom there, who was it informed you of their using it?” A. “Most invariably the men that were using it.”
Q. “Who would that be?” A. “The conductor who happened to be switching there.”
Q. “How long was that the custom while you were there as tower man?” A. “All the time while I was there.”
Q. “I want you to state whether during the time that you were there as tower man, what was the custom and practice with reference to the use of that track down as far as the tower for switching purposes or for any purpose?” A. “That track has to be blocked.”
By the Court: Q. “What was the practice in November, 1901?” A. “As near as I can remember it was always done while I was there. If I was in the tower I always made it my business to do it before I gave them the switches.”

In cross-examination of the witness McGrevy, this question is asked:

Q. “Wasn’t it your duty to see that the trains were kept moving through the yard?” A. “Yes, sir.”
Q. “To give orders to move and see that everything was as clear as possible?” A. “Yes, sir.”
Q. “You were in the habit of giving orders, to the men through the yard?” A. “Yes, sir, whenever it was necessary.”
Q. “Were these men accustomed to obey your orders?” A. “Yes, sir.”
Q. “How long had you been doing this?” A. “Ever since I was in the tower.”
Q. “Had you been doing that in the presence of the yard master at times ? ” A. “ I do not know that I ever saw the yard master present at the time.”
Q. “From whom did you get'your orders to do those things, the yard master?” A. “Yes, sir.”
Q. “He has been frequently in the yard while you were doing that work?” A. “He has been on the ground, but I do not remember of his being in the tower. ”
Q. “He could see the way you were carrying on your business?” A. “Yes, sir.”
Q. “Did you not frequently send a man over the west bound track?” (Objection.) A. “Yes, sir.”
Q. “Didn’t the yard master at frequent times tell you to use your own judgment in giying orders, — to send trains as you saw fit?” A., “Yes, sir.”
Q. “Did you frequently call out to Burtscher and the other engineers and order them to go in a given direction?” A. “They had the switches to go up, it was not necessary for me to call out to them. ’ ’
Q. “Did you frequently give them orders?” A. “I did when I thought it was necessary.”
Q. “Did they obey your orders?” A. “Yes, sir.”
By the Court: Q. “What do you mean by an order such as you say you gave?” A. “If I wanted a man to go on a certain track and the switch was given to him and he did not go, I would tell him that the switch was given for a certain track, if I thought he was not familiar with the switches.”
By Mr. Thatcher. Q. “Would the men go when you ordered them under those circumstances?” A. “Yes, sir.”

There is other testimony by Smith, the conductor, and Dunham the fireman, bearing upon the question.

Now when we remember that the duties of the train dispatcher are not to make a schedule, but simply to direct the movement of trains, it would seem as if the tower man had duties, which, upon a small scale are, as to a limited part of the road, very analogous to those of a train dispatcher; and, while the train dispatcher is not precisely, like a conductor, the direct superior of an engineer who has to obey him, he does, I think under the general current of authority, stand in the relation of vice principal as defined in the Encyclopedia, in the part to which I have referred. I ,see no reason why a distinction should be drawn between these duties performed by the tower man and those of the train dispatcher, because they are, over a limited area of the defendant’s road, very similar, and he represents the company to the same extent. The company is charged, with the general duty of providing a reasonably safe place for the movements of its trains, for employes to work. Some of the courts have placed the liability of the company under such circumstances upon that principle, the duty of the company to provide a reasonably safe place to work. I do not know that the Supreme Court of Ohio has ever applied that principle to this particular kind of a case. But upon the whole, remembering the rule laid down in Pitts. Ft. W. & C. Ry. v. Lewis, 33 Ohio St. 196, and Railway v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11], that the relationship as to superiority is to be determined in each case by the evidence in that case, that it is a question largely of fact, the court are unanimously of the opinion that the issue was properly one for the jury, and that there is no weight of evidence in this case against the theory contended for by the plaintiff, sufficient to justify any disturbance of the verdict.

The verdict is for $13,500. It is perhaps ■ a larger amount than the judges would have allowed if the matter had been presented to them as triers of fact. But we cannot say, under the circumstances of the ease, the nature of the plaintiff’s injury, the length of'time that has elapsed since the injury was sustained, the fact that he was in the very prime of his manhood, when he received the injury, that he was earning $1,200 a year, and that he has been practically disabled from work, that the amount allowed by the jury is sufficient to indicate that they were influenced by passion or prejudice. Without that, the court could only proceed in making any modification of the verdict, in requiring any remittitur of any part of it, upon the theory that there has been some error of computation in determining the amount. But' the amount is necessarily so indefinite, so difficult of ascertainment when we are dealing with such an injury as this, that it is not susceptible of such computation as may be made in many eases. One of the items entering into the assessing of damages is pain, physical and mental, that a man has suffered, and it is difficult to measure these things exactly in money. It must be largely a matter of discretion with the jury. And after a careful consideration of the whole question, we have not thought best to disturb the verdict, notwithstanding the fact that it is somewhat larger than we should have been probably inclined to allow, had the matter been submitted to us in the first instance. One of the .judges of this court has made a computation, in order to ascertain what sum of money would purchase an annuity sufficient in amount for his livelihood during the years of his expectancy of life. We find that, looking at it from such a standpoint as that, the verdict is not very far in excess of the sum which would be necessary to purchase such an annuity. I mean, to purchase an annuity which would be equal to the difference between his probable earnings during the residue of his life, or v such time' as he would be • able to work, and the amount which he is now likely to be able to earn in his physical condition. We think the amount is not so far below the sum allowed by the jury as to justify us in saying that they might not have considered such an amount and added to it compensation for the suffering which the man has sustained, the operations that have been performed upon him during the treatment by the medical attendant, who, I believe in fhi.a ease was the surgeon of the company (and presumably he has received as good attention as could possibly be obtained for him), I say that under all these circumstances we have not thought best to disturb the verdict of the jury.

The judgment of the court below will be affirmed without penalty.

Parker and Haynes, JJ., concur.


source: Caselaw Access Project

author: WILDMAN, J.

license: Public Domain

text:
    INTOXICATING LIQUORS — MONOPOLIES.
    [Lucas (6th) Circuit Court,
    March 17, 1906.]
    Haynes, Parker and Wildman, JJ.
    The Huebner-Toledo Breweries Co. v. Joseph Singlar et al.
    1. Valentine Antitrust Law Includes Liquor Traffic within its Purview.
    The provisions of the Valentine Antitrust Law (Lan. 7586 to 7597; B. 4427-1 to 4427-12) are as applicable to contracts having reference to the traffic in intoxicating liquors as to others.
    2. Covenant that Lessee will Sell Lessor’s Beer only within One Mile is Void, if there is no Conveyance of Good Will.
    A covenant in a lease of certain premises by which the lessee agrees to sell only the lessor’s beer thereon or within a radius of one mile for a period of five years is in restraint of trade and void as against public policy if there is no conveyance to him of a good will attaching thereto.
    3. Agreement by Lessee not .to Compete with Lessor in Another Locality is Void.
    A contract by the vendor of a certain business not to thereafter enter into competition with the vendee in that locality is enforceable at law; but a contract, based upon no matter how valuable a consideration, by a lessee of property not to enter into competition with the lessor in other localities is void as against public policy, and unenforceable.
    4. Agreement to Sell Commodity of Certain Make is Void if there is no Obligation on other Party to Furnish Same.
    A covenant in a lease of certain premises by which the lessee agrees to sell only the beer manufactured by the lessor, there being no provision by which the lessor binds himself to furnish the same to the lessee, is against public policy and void, as tending to restrict individual effort and industry.
    [Syllabus approved by the court.]
    Error to Lucas circuit court.
    Swayne, Hayes, Fuller & Tyler and G. P. Hahn, for plaintiff in error.
    F; C. Schaal and Fell & Connolly, for defendants in error. '
   WILDMAN, J.

This case bas been submitted to the court upon a motion to dissolve a temporary injunction heretofore granted. The grounds of the motion are: (1) That the petition filed herein does not state facts sufficient to entitle the plaintiff to the equitable interference of this court by injunction; (2) That the plaintiff has an adequate remedy at law, and the injury complained of, if any should be sustained, is measurable and not irremediable in character.

This second alleged ground, is manifestly involved in the first, because if the claim so stated is correct, it in itself would make the petition ‘ defective, so far as the jurisdiction of this court is concerned, as not -stating facts, sufficient to entitle the plaintiff to equitable relief.

No other grounds are stated in the motion, and the question so presented requires an examination of the petition to determine its sufficiency or insufficiency. It is substantially as follows: The brewing company named sues Joseph Singlar and Annie Singlar, alleging that the plaintiff is a corporation organized and existing under and by virtue of the laws of Ohio, engaged in the business of manufacturing and selling beer and having its principal place of business in the city of Toledo, Lucas county, Ohio. It alleges that at the date named Joseph Singlar was a tenant of another party of premises situated in said city, and was engaged at that time in operating a-saloon thereon. That on said day the defendant, Joseph Singlar, informed the plaintiff that he had received' notice to vacate said premises, and that, for the purpose of retaining possession of the same, an arrangement and agreement in writing were entered into between the plaintiff and the defendant, Joseph Singlar, as follows:

“September 9, 19G5.
“This agreement made this September 9, 1905, between Joseph Singlar and the Huebner-Toledo Breweries Company, witnesseth:
“That the said Joseph Singlar immediately upon the purchase by the said The Huebner-Toledo Breweries Company of the premises owned by Michael Szopko and now occupied by the said Joseph Singlar as a saloon, said property being located on Genesee street, between Ann street and Whittemore street, in the city of Toledo, Lucas county, Ohio, and known as No. 624 Genesee street, the said Joseph Singlar will lease said premises for the period of five (5) years at the rate of ten dollars per month and that during the said period of five years said premises will be used for the sale of no other beer, including bottled beer, than of the manufacture of said The Huebner-Toledo Breweries Company, its successors and assigns, and that he will not, during said period of five years, engage in the sale of any beer, including bottled beer, except of the manufacture of said The Huebner-Toledo Breweries Company, its successors and assigns, within one-half mile of said premises, and that he will not assign said lease or sublet said premises, and the said The Huebner-Toledo Breweries Company agrees to 'purchase' said premises if the same can be secured for not more than"$2,500, and that the title to said premises is clear and that there are no'restrictions upon the use of said premises, and will make said lease to said Joseph Singlar immediately upon purchase of said premises.”

The petition alleges' substantially that upon the execution of this written agreement the plaintiff purchased .the property mentioned for the sum of $2,700, and immediately thereafter offered to execute to Joseph Singlar a lease of the same for the period of five years at $10.00 per month, but the defendant refused to execute or accept the lease unless his wife, the other defendant named in the petition, Annie Singlar, would be made a party to the same, and thereupon and in consideration of the plaintiff agreeing to execute said lease to both said defendants the following- covenant and agreement was inserted in the said lease and agreed and consented to by both of the said.defendants, to wit:

“And the said parties of the second part (Joseph Singlar and Annie Singlar) in consideration thereof, do hereby covenant and agree to pay the said party of the first part (The Huebner-Toledo Breweries Company), its successors or assigns, as rent for said premises the sum ■of ten dollars per month payable on the first day of each and every month, and hereby covenant that during said period of five years they will not engage in the sale on said premises or within one mile thereof •of any beer, including bottled beer, except of the manufacture of said The Huebner-Toledo Breweries Company, its successors and assigns.”

The petition alleges that the said defendants, Joseph Singlar and Annie Singlar, are owners of the premises known as lot No. 70 in Robison’s Riverside Addition to Toledo, and that said latter named premises are situated within one hundred feet of those described in the lease, and that the defendants, contrary to the covenant, or perhaps both covenants, mentioned, are now engaged in selling on said lot No. 70, beer other than that manufactured by the said plaintiff, to the irreparable damage of the plaintiff. The petition says that neither of the said defendants is the owner of any property not -exempt from execution, and that the plaintiff has no adequate remedy at law to protect its rights.

The prayer of the petition is for an injunction to restrain the defendants from engaging in the sale, for five years from September 9, 1905, on said lot No. 70 in Bobison’s Biverside Addition to the city of Toledo, Lucas county, Ohio, as principal, agent or employe, of any beer except- that manufactured by the Huebner-Toledo Breweries Company, its .successors and assigns, and for such further relief as may be equitable. • -

It may be premised in the consideration of the issue presented that "the covenant in the lease which was finally - executed by all parties to this ease supplanted the covenant incorporated in the original contract between the plaintiff and Joseph Singlar. ' His wife was brought into the second arrangement, and- the territory over which the restrictivo clause was intended to operate was enlarged; instead of being confined to á space of one-balf mile from the leased premises it was extended to a space included in a circumference of one mile therefrom.

The substantial question, and almost the only question involved, is as to whether such a covenant as we have before us is valid and enforceable in equity, or whether it is contrary to public policy and void. In the able arguments made orally and upon brief to this court many adjudications have been cited bearing more or less closely upon the question stated. It is unnecessary and would not be profitable to recapitulate or review all of these decisions, or indeed, very many of them. It has seemed to myself that some confusion has arisen, not only in the argument, but in the language of some of the judges rendering the decisions to which we are cited, growing out of the fact that no close distinction is taken between a reservation of the use of property leased or conveyed and a restriction upon some action of the vendor which is intended to protect the vendee in the possession of property and any good will which may attach to it.

In the one class of cases, we have such clauses as that found in the case of Stines v. Dorman, 25 Ohio St. 580. This was a qualification of the use of premises transferred, and a similar qualification perhaps is that found in one of the principal cases cited by counsel for the plaintiff. Ferris v. Brewing Co. 155 Ind. 539 [58 N. E. Rep. 701; 52 L. R. A. 305].

The covenant in the other class of cases is almost, if not quite, invariably associated with a sale or transfer of good will attaching either to premises or to a person. It may involve a trade which has grown up and has become a sort of an appurtenance to some premises used for mercantile purposes or otherwise, or it may have reference to the personal skill of a vendor; but in either case it involves the protection to a ven-dee of the full benefit of his purchase.

In such case the clause is not, in one sense, restrictive. It indeed restricts the right of the vendor to do certain things, but there is no restriction upon the vendee. But in the other case to which I have referred — in the first class mentioned — the restriction is not upon the vendor at all, but it is upon the. vendee. It is a qualified use of the premises leased .or sold. It is just as clearly so as in a dedication of land to a city for the purposes of a street or any public structure, or in a lease of property to be used as a hotel or saloon, or any other structure or business.

In the one case, it is a reservation from the conveyance itself. In the other case, it is a restriction upon conduct of the vendor or lessor, •designed to prevent him from interfering with the full use of that which he has granted or leased to his vendee or lessee. In the adjudications which have been cited to us, and others which we have examined, we have found it not very hard to make this classification. And no case has been cited wherein a contract, which is purely restrictive upon a vendee or lessee and where there has been no possible conveyance to him of a good will attaching either to a person or premises, has been upheld. In other words, in all these cases where an attempt has been made to restrict the conduct of a vendee or lessee, or to restrict the conduct of any one else, (although upon an ample consideration perhaps), so as to prevent full liberty of action by him in carrying out his vocation, whatever it may be — I say that in no case of this character have we been able to find adjudications upholding such covenants.

Now, in the case at bar, it is not claimed in the petition that the ■qualified use of the leased premises has in any way been violated by the vendee. There would seem to be no question that the plaintiff, being the owner of the premises leased, had a right to insert in the lease any qualification as to use that seemed advisable and to the interest of the lessor. But the question here is not that. The question is as to the power of the lessor, in consideration of the purchase of the property and the leasing of it to the lessees, to bind the lessees by contract not to engage elsewhere in the business of vending beer other than that manufactured by the plaintiff.

Some suggestion was made during the argument before us that the so-called Valentine Antitrust Law of Ohio might have application here, and the response was made by one of the counsel that this act had been declared unconstitutional by one of the circuit courts of the state. This seems to have been correct. But it also appears that by a very recent adjudication of the Supreme Court the act has been upheld, and in the upholding of the statute the judge rendering the opinion for the court has announced some principles which may be a guide to us in the consideration of his ease. We refer to the case of State v. Gage, 72 Ohio St. 210. The syllabus is as follows:

“The act of April 19, 1898, defining trusts and prohibiting them under penalties (93 O. L. 143) by a valid exercise of the police power, authorizes the punishment by fine and imprisonment of a person who is an active member of, and assists in carrying out the purposes of, an association formed to prevent competition in the sale of an article of merchandise. ’ ’

Before reading from this opinion, or from the statute which it upholds and to a certain extent construes, I will make some reference to a question incidental to the one under 'inquiry, which has received consideration from the courts of some states. It is this: Whether any public policy of the state is infringed upon, or violated, by a restriction upon the sale of 'a commodity of the kind mentioned in this petition and in this contract. It is not exactly an article of food, nor an article of use, in the ordinary sense, otherwise perhaps than as a beverage, and yet, under the broad language of the statute of Ohio to which I have referred, it may well be said that to except beer from the definition of the term “commodity” would be judicial legislation. In the ease of Anhauser-Busch Brew. Assn. v. Houck, 27 S. W. Rep. 692, decided by the court of civil appeals of Texas in 1894. It was there held:

“1. A contract by a brewing association with dealers in a city to furnish them beer in bulk, and not to furnish it in bulk ‘to any other party’ in such city for one year, is not void as against public policy and in restraint of trade, so as to prevent a recovery for beer sold thereunder.
“2. A combination of persons and firms in a city for the control of the sale of beer and the cessation of competition inter se is not void at common law as against public policy, although in restraint of trade, since beer is not an article of prime necessity, and its sale is closely restricted by public policy.
“3. The act of 1889 relating to conspiracies against trade, forbids combinations of persons or corporations to prevent competition in the purchase, sale, or transportation of merchandise, and all agreements not to sell below a certain or graduated-price, or to establish ‘the price of any article or commodity between themselves and others to preclude free competition among themselves or others in its sale or transportation/' Held: That a contract between liquor dealers in a city for the control of the beer traffic there and in all markets tributary thereto, each turning1 ‘ all the beer he or they may handle or control' into this copartnership, ’ violates the above statute, and is void, although the persons so combining are the only dealers in the city, .and the price was not increased to consumers.”

I need not read from the case because this question was not especially, if at all, argued before us by counsel, but in our consideration of the matter the question has occurred to us and perhaps should be met in passing.

The Ohio statute passed upon in the case of State v. Gage, supra, is in 93 O. L. 143. Eliminating such portions of the act as have no especial reference to the present case, it appears from its title that, among its other objects, is the promotion of “free competition in commerce and all classes of business in the state.” Section 1 (Rev. Stat. 4427-1; Lan. 7586) provides:

“That a trust is a combination of capital, skill or acts by two or' more persons, firms, partnerships, corporations or associations of persons or of any two or more of them for either, any or all of the following purposes:
“1. To create or carry out restrictions in trade or commerce.
“2. To limit or reduce the production, or increase, or reduce the-price of merchandise or any commodity.”

Stopping for a moment, it may be said that it was argued during, the presentation of this motion to us that the effect of this covenant, and its execution would not be the reduction of production or increase of the price of beer in the circumscribed territory. But it is to be noted that this statute has application to other matters than the mere limitation or reduction of production or increase of the 'price of merchandise or any commodity. That is only the second clause of this statute. The first, .as I have read, is the creation or carrying out of restrictions in trade or commerce, and nothing is said in that clause as to the effect of' such transactions. The section continues: ■

“3. To prevent competition in manufacturing, making, transportation', sale or purchase of merchandise, produce, or any commodity.
“4. To fix at any standard or figure, whereby its price to the public or consumer shall be in any manner controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, barter, use or consumption in this state.
“5. To make or enter into or execute or carry out any contracts,, obligations or agreements of any kind or description, by which they shall bind or have bound themselves not to sell, dispose of or transport any article Or any commodity or any article of, trade, use, merchandise, commerce or consumption -below a common standard figure or fixed value, or by which they shall agree in any manner to keep ¡the price of such article, commodity or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of any article, commodity or transportation between them or themselves and others, so as to directly or indirectly preclude a free and unrestricted competition among themselves, or any purchasers or consumers in the sale or transportation of' any such article or commodity, or by which they shall agree to pool, combine or directly or indirectly unite any interests that they may have connected with the sale or transportation of any such article or commodity, that its price might in any manner be affected. Every such trust as is defined herein is declared to be unlawful, against public policy and void.”
Section 8 (Rev. Stat. 4427-8; Lan. 7593) provides:
“That any contract or agreement in violation of the provisions of this act, shall be absolutely void and not enforceable either in law or equity. ’ ’
Section 9 (Rev. Stat. 4427-9; Lan. 7594) provides:
“That the provisions hereof shall be held cumulative of each other and of all other laws in any way affecting them now in force in this state.”

Along the same line, and following the principle of the decision in the Texas ease to which I have referred, we have the case Carr v. Brewing Co. 17 Dec. 222, Judges Ferris, Hoffheimer and Caldwell uniting in the opinion. The syllabus reads:

“The laws of Ohio with reference to the liquor traffic have always been more liberally construed than in some of her sister states, and the Ohio law rendering void all contracts in restraint of trade is applicable to contracts having reference to the sale of liquor.”

1 am not quite sure that this court would go so far as to say that the laws of Ohio are more liberal than the laws of other states in this respect, and indeed, this superior court says only that they have always been more liberally construed than in some of her sister states, especially, as one of my associates suggests, in Indiana. The contract involved in the case cited was one wherein under a transfer, or in connection with a transfer, of the good will of certain premises, the vendors, Alice G. Carr and Thomas Gilmore, stipulated as follows: .

“ # * # we will not again enter into the grocery or saloon business within three blocks or squares, east, west, north or south, of said premises, within eighteen months from date hereof.”

It' will be noted that this case falls within the class of contracts which I have heretofore mentioned as coupled with the transfer of the good will, and designed to afford to the vendee the fullest protection in the enjoyment of the property and all the go&d will which has grown up in connection therewith. The court in this case held that the contract was so in restraint of trade as to be void, seemingly relying upon several adjudications of Ohio which have been cited in the case before us, including Lange v. Werk, 2 Ohio St. 519; Field Cordage Co. v. Cordage Co. 3 Circ. Dec. 613 (6 R. 615); State v. Gage, 72 Ohio St. 210.

Resuming consideration of State v. Gage, Judge Shauek, on page 229, says:

“The purposes named in these subdivisions do not relate to any ■contract with respect to the'use of one’s property or his faculties. They are purposes which made contracts void at common law as being opposed to public policy, which, according to legal views which still prevail, requires that the conditions of competition be maintained. They are also within the combinations which were prohibited by many ancient statutes. ’ ’

Some force is attached to the use of such language as this by counsel for the plaintiff, who earnestly urge that the Ohio antitrust statute is after all but a placing of penalties upon transactions which before were so unlawful as'to be nonenforceable as contracts. But upon pages .230 and 231 the judge gives expression to some ideas as to what classes of contracts would be deemed contrary to public policy under the Ohio adjudications, even prior to the enactment of this statute. On page 230:

“Brief attention to the development of the law upon the subject will show that argument” (along a certain line which he mentions) “would be unavailing rather than unnecessary. So long recognized and so frequently applied in the same jurisdictions that their eongruity must be admitted are the doctrines that every contract in restraint ■of trade is void if nothing else appears; but, nevertheless, that property used in the competition of trade may be sold, including the good will of the vendor’s business, and that to effectuate the sale of the good will, the vendor may make a valid stipulation to abstain from competition if the stipulation is limited to that purpose.”

In other words, if the stipulation is limited to the protection of "the good will, then it will be enforced. On page 231 he continues:

“And courts of equity have even required members of a copartnership to abstain from the conduct of a rival business.”

The reason for this is manifest. It would interfere with the purposes of a partnership; it would interfere with the interests of the ■copartners. And he adds:

“In short, the courts have uniformly denounced contracts in restraint of trade unless the restraint results as an incident from the use ■of one’s property and his faculties. The distinction is one of easy grasp and it is too late to question its importance. Within the limits of the present case, it is - obvious that the effect of the statute is to prohibit affirmatively such contracts and transactions as were previously unlawful, but which could be so adjudged only when the aid of the courts was invoked for their enforcement. ■ >
“It must be obviously unavailing to urge the constitutionally protected right to make contracts with reference to one’s property and his faculties as an objection to a statute which does not prohibit or restrain the power of making such contracts.”

Now, manifestly, a contract which provides that one selling a business in a certain locality shall not himself enter into competition in that locality with the person to whom he has sold, in the carrying on of the same kind of business, is a very different thing from a contract, based upon no matter how valuable a consideration, that some person to whom a property is sold shall not enter into competition with the vendor in any other localities than on the particular premises so conveyed. It may be said, indeed, that the restricting of the use of the premises conveyed is in partial restraint of trade. So it is; but it is the kind of reservation which a person has a right to make in his grant.' Deeds have been not unusual, and have been upheld, that contained the provision that no> liquor shall be sold at all upon the premises conveyed, or if any sales of liquor are made, that the title shall revert to the grantor. It is said that the city of Vineland, New Jersey, is practically under prohibitory law by reason of the incorporation of such clauses in the title deeds of vendors of the property. And there is no more reason to set aside and ignore as invalid, contracts or reservations of this character' in conveyances or leases than there would be to set aside a restriction to a particular use of property conveyed to be used as a church, or a school, or a street, or an alley. In all these cases the grantor keeps something back. He does not sell all he has. He may not desire to use, and may not be able to use, the property for any purpose himself, but he may put a qualification upon its use by his vendee or his lessee.

Some confusion may arise in the mind here from the fact that the consideration of this covenant is the leasing of a particular property, but to our minds it is not different from a case where, in consideration of a money payment-or any other valuable thing, a person agrees to keep-out of a certain market in the way of buying or selling or manufacturing-any kind of commodity.

It is to be noticed that there is no stipulation in this contract, no-provision .whatever, that the Huebner-Toledo Breweries Company shall sell any of its beer to these defendants. There is no power, in other words, left or given by this lease to the covenantors in it — to the defendants — to continue in the business of selling beer at all, unless by the permission, express or tacit, of the lessor. If the breweries company should conclude not to furnish the defendants with beer, and if this covenant were to be upheld, the defendants would be deprived of any power to use such skill as they may have in the carrying on of this business anywhere within the circumscribed territory. In other words, they could be put out of the trade entirely by the will of the lessor. There is no provision in this writing either that the lessor shall furnish or that the lessees shall buy any of the beer manufactured by the plaintiff, but the provision strikes entirely at the conduct of the lessees with reference to the beer manufactured by other people or concerns.

In this connection some reference may be made to the principle stated in 2 Beach, Mod. Cont. Sec. 1565, as follows:

‘ ‘ There are two grounds on which rests the doctrine that a contract in restraint of trade is void as against public policy. One is the injury to.the public by being deprived of the restricted party’s industry; the other is the injury to the party himself by being precluded from pursuing his occupation, and thus being prevented from supporting himself and his family.”

And in the same connection, 1 Page, Contracts See. 432, should be cited.

In the case of People v. Stock Exchange, 170 Ill. 556, 567 [48 N. S. Rep. 1062; 39 L. R. A. 373; 62 Am. St. Rep. 404], it was said:

‘‘The common law refused to recognize restrictions upon trade and business among citizens of a common country. Under this rule of the common law the right of the laborer to dispose of his skill and industry, and to contract in reference to the same with whom he pleases and at such contract rates as might be agreed upon, was recognized and not allowed to be trammeled with restrictions which interfered with individual action and liberty.”

There is a recognition in this decision of the principle enunciated in the test book to which I have referred, 2 Beach, Mod. Law Cont., that the policy of the legal rule is two-fold, and that one of its objects is the protection of the individual in the right to use his own faculties. Reading further from the case:

“Combinations and associations of men have no right to place restrictions upon the right of an individual to contract and engage in business, employing such means and agencies as are not prohibited by law. ”

And taking up the other phase of the proposition, says:

“Effort to prevent competition and to restrict individual effoits and freedom of action in trade and commerce are restrictions hostile to the public welfare, not consonant with the spirit of our institutions and in violation of law.”

And in further support of the views which I have been endeavoring to express I may read further from this Illinois case as follows:

¡t# * # y. seems ^at the only cases, apart as we have indicated from those just mentioned, in which there can be any legitimate occasion for a covenant on the part of one not to engage in the business proposed to be carried on by another, are those in which the covenantor has sold to the covenantee his stock in trade, as in the case of a merchant, or his part of it, as where one mercantile partner sells out to the other or to a stranger, or, being a professional man with an established practice, as a physician, dentist and the like, or mechanic with a shop and accustomed patronage, as a blacksmith and the like, or, if he be a manufacturer, sells out his practice or business or plant, with or without an express stipulation as to its good will, and in the same transaction and as part of the thing sold and as in part the consideration for the price paid, agrees not to engage in that business, profession or trade, as the case may be, within the territory covered or supplied by the business, practice or factory purchased during the time the vendee shall be interested therein. * * * But there is no room for the application of these reasons in cases in which the covenantee does not purchase the business, practice, trade or plant of the covenantor and the transaction involves nothing but a bald covenant in restraint of trade for which there is no other consideration than the payment of money for the obligation itself. In such cases the business of the covenantor is not transferred merely, it is destroyed.”

Referring further to the loss to the public by reason of restriction upon the use of the faculties of an individual, the judge says: “Labor is thrown out of employment; ‘the same number of mouths’ are not fed.”

In other words, the laborer, instead of being a producer, becomes a consumer. Further:

“The consideration the covenantor receives is not the just reward for his skill and energy and enterprise in building up a business, but is a mere bribery and seduction of his industry and a pensioning of idleness. The motives actuating such a transaction are always in a sense sinister and baleful.”

We should hardly like to say that here. The motives may be, and probably were, altogether innocent; that is, there may have been no thought of any impropriety in the making of such a contract, or any idea on the part of any of these parties that they were either violating public policy or a public statute.

Some suggestion having been made in argument that no restriction, of this character should be upheld unless coupled with a sale of good will, it seems to have been understood on the other side as a claim that there can be no sale of good will except in connection with some tangible plant, some real estate, or some other property to which the good will' pertains. If counsel for the motion entertained that view, we think, that it would be going too far. There may be such a thing as a sale-of good will as appertaining to a professional business, or an industry, where there has been no transfer whatever of any tangible property,, real or personal. The cases mentioned in this Illinois report of the sale-of the professional business of a lawyer or a doctor would be an illustration of a class of cases where the good will may be sold in connection, perhaps with a business, but without any transfer whatever of any other property right; but still it is a sale of the good will. And sometimes it may.be coupled with a direct sale of one’s own faculties, or one’s own skill in business, in connection with a covenant that while working for the covenantee he will give the covenantee.the benefit of his whole time and he will do no work for anyone else. This is the kind of contract which we find often in the employment of agents or salesmen, wherein the work of the person employed is given exclusively to the employer.

I have given perhaps more time than I ought to the consideration of this case, but I have done it in view of the importance and interest of the question presented, and also the fact that our view is not in accord with that which seems to have been entertained by the court below.

I might add to all that has been said that a reading of this petition does not disclose any apparent danger to the petitioner that it will suffer damage by reason of any act or conduct of the defendants. It is not said in the petition that there is any threat of a continuance of sales. It is not said that the defendants have, or ever have had, any good will of value pertaining to the saloon in' which it is said they are now engaged in business. As already indicated, there is no averment that the plaintiff was to supply them with beer. There is no averment that the defendants are selling other beer than that manufactured by the plaintiff in the saloon which was leased by the plaintiff to the defendants. There is no averment that the defendants, or either of them, have any personal skill or ability whatever to sell beer, or have any patronage, any custom, which has grown up, which it would be a loss to the plaintiff not to have turned to the purchase of goods manufactured by it. All of these latter matters, to which I have referred, might perhaps be cured by an amendment to the petition, provided the facts exist which would warrant such amendment. But the other considerations which have been given to the particular covenant itself and the principles of law governing its construction and the determination as to whether it is valid or invalid, en-foreeable or nonenforceable, would seem to be vital to the rights of the parties and hardly susceptible of change by amendment.

Our conclusion is that this motion should be sustained, that the injunction should be dissolved, and it will be so ordered.

Parker and Haynes, JJ., concur.