author: Price, J.

text:
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. The Ohio Postal Telegraph Cable Co. et al.

      Magnetic telegraph company — Seeks to secure right of way . along property of railroad company — Probate court proceedings — Sections 3Jf56 to 3J/59, Revised Statutes — Court must hear testimony and decree no practical interference with railroad — Burden of proof on telegraph company — Compensation due railroad company — Law of easement and appropriation.

    1. In a proceeding instituted in tbe probate court by a magnetic telegraph company, under the provisions of Sections 3456 to 3459, inclusive, of Revised Statutes, for the purpose of appropriating to its use, a part of the right of way of ai railroad company organized under the laws of Ohio, it is necessary and jurisdictional for that court to hear and determine, and so enter of record, that the easement sought to be appropriated by such telegraph company, will not in any material degree, interfere with the practical uses to which the railroad company is authorized to put such right-of-way. The burden of proof to establish that fact is upon the telegraph company, and until the court has so determined, it is without jurisdiction to order an appropriation and impanel a jury for the assessment of compensation to the railroad company.
    2. When the necessary preliminary facts are found as prescribed by the statute, and the case proceeds to an inquiry as to the compensation, due the railroad company, the ■measure of compensation is the amount of decrease in the value of the use of the right of way for railroad purposes, ■which will result from the easement appropriated and used by the telegraph company.
    (Decided May 19, 1903.)
    Error to the Circuit Court of Crawford county.
    On August 30, 1899, the defendant in error, The Ohio Postal Telegraph Cable Co., filed in the probate court of Crawford county, its petition against the plaintiff in error, and the holders of certain trust deeds securing certain bonded indebtedness owing by the railway company, the purpose and prayer of which petition were to obtain by appropriation, the right of The Ohio Postal Telegraph Cable Co., to enter upon and occupy, for the erection and operation of its telegraph line, five feet of the right-of-way of the plaintiff in error, from the city of Cleveland, Ohio, to the state line at Union City — the five feet to be of the outer and southerly part of said right-of-way.
    The right to make the appropriation is asserted under the provisions of Sections 3456 to 3459, inclusive, of Revised Statutes.
    The plaintiff in that proceeding in the probate court, alleged its corporate capacity under the laws of Ohio, and that the railway company owns a right-of-way for railroad purposes, about one hundred feet in width from Cleveland to Union City; and that the petitioner needed a line of telegraphic communication between these cities, and beyond and that the most direct, safe and practicable route for the construction of its line is on and along the right-of-way of said railway company, and that the board of directors of the telegraph-cable company had duly adopted a resolution declaring it to be necessary to appropriate the right to use five feet of the southerly side of the right-of-way, and that it had been unable to agree with the railway company as to the compensation to be paid. The petition further details the character of poles to be erected, the wires to be strung and other fixtures which the telegraph-cable company would place on the strip so to be appropriated; also “that the erection of the line of telegraph upon the right-of-way will not in any material degree, interfere with the practical or usual and'ordinary uses to which said' railway company is authorized to put such right-of-way.”
    The petition was afterwards amended to claim the right of appropriation from a point one-half mile west of Berea, station in Cuyahoga county on the southerly side of the right-of-way, to Shelby station, in Richland county, thence across the right-of-way to the northerly side thereof, and to continue on the northerly five feet of the right-of-way to Union City, on the state line.
    After service had been duly made, the railway company filed an answer upon which the preliminary hearing was had in the probate court. The answer is a general denial of each and every allegation in the petition and the amendments made thereto.
    It is stated in briefs of counsel that on the hearing The Ohio Postal Telegraph-Cable Co. introduced as part of its evidence the charter issued to it by the state of Ohio, the organization of the company thereunder, election of officers, and certain proceedings of its board of directors declaring the necessity for appropriating the portion of the right-of-way; and that thereupon the railway company sought to defeat the right of the telegraph-cable company to institute the proceedings, by showing that there had been no payments made upon any of its capital stock, without which it could transact no business.
    This latter point seems to have failed, no doubt because it is immaterial; and after hearing the evidence offered, the probate court made the following findings and order:
    “Tuesday, January 16, 1900.
    “This cause having been continued from the-day of November, A. D. 1899, being the day theretofore fixed by the court for the hearing of this cause until the twenty-seventh day of November, A. D. 1899, upon said last named date came the plaintiff by its attorneys and also the defendant, The Cleveland, Cincinnati, Chicago & St. Louis Railway Co., by its attorneys, and this cause came on for hearing upon the petition of the plaintiff filed herein and the answer of said defendant railway company, all of the defendants having been duly and legally served with process or by publication herein, and upon the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owners of the property and the necessity for the appropriation and the same was heard upon the evidence offered by the parties and was argued by' counsel, and the court not being fully advised in the premises took the same under advisement, and
    “Now, on this sixteenth day of January, A. D. 1900, the court being fully advised in the premises, do find that the plaintiff is a corporation, and has a legal right to make the appropriation of the property described in the petition as prayed for; that the plaintiff is unable to agree with the owners of the property as to the amount of compensation to be paid therefor, and that there is a necessity for such appropriation as prayed for in the petition; and the court proceeding as directed by statute orders and directs that a jury be drawn as required by law, returnable at a time to be hereafter fixed by the court. To all of which findings of the court the defendants at the time excepted.
    “Charles Kinninger,
    “Probate Judge.”
    The railway company filed a motion for a new trial March 3, 1900.
    This motion was overruled on March 22, 1900, and a bill of exceptions as to the proceedings 'on preliminary hearing was allowed for the railway company April 23, 1900.
    After making the findings and order of January 16, 1900, the probate court ordered a jury to assess to the railway company compensation on account of the appropriation. A jury was drawn and empaneled and the case heard. A verdict of $6,750 was returned by the jury and confirmed by the court. The motion for a new trial filed by the Telegraph-Cable Co. was overruled. One of the grounds of the motion was that the verdict was excessive. Error was prosecuted in the court of common pleas by The Postal Telegraph-Cable Co. to reverse the probate court and obtain a new trial. The court of common pleas found error and reversed the judgment of the probate court and set aside said verdict, but retained the case for trial in the court of common pleas, as to the question of compensation. Trial was had to a jury in that court, and a verdict for $500 compensation returned March 25, 1901, which verdict was confirmed on March 30, 1901.

      During the trial exceptions were taken to the exclusion of evidence offered by the railway company, and also exceptions to the charge of the court, and for refusing to charge as requested.
    Error is prosecuted in this court by the railway company to reverse the judgments of the lower courts.

      Mr. E. A. Foote; Mr. John T. Dye and Mr. H. D. Estabrook, for plaintiff in error,
    cited and commented upon the following authorities:

      Postal Tel. Cable Co. v. Railway Co., 10 O. F. D., 94; 94 Fed. Rep., 234; Lessee of Kemper v. Turnpike Co., 11 Ohio, 392; 3 Sedgwick Damages (8 ed.), Sec. 1117; Austin on Jurisdiction (4 ed.), 818, 836; Railroad Co. v. Postal Tel. Cable Co., 46 S. W. Rep., 571; Railroad Co. v. Postal Tel. Cable Co., 34 So. Rep., 408; Railroad Co. v. City of Chicago, 166 U. S., 226; Railroad Co. v. City of Dayton, 23 Ohio St., 510; Fox v. Holcomb, 34 Mich., 298; Thompson, Com. on Law of Corp., Vol. 6, Sec. 7641; Abbott’s Trial of Ev., 17; Matter of Railway Co., 72 N. Y., 245; Syracuse v. Benedict, 86 Hun, 343; Atkinson v. Railway Co., 15 Ohio St., 21; Railway Co. v. Sullivant, 5 Ohio St., 276; Powers v. Railway Co., 33 Ohio St., 429; State v. Insurance Co., 49 Ohio St., 440; Railroad Co. v. Railroad Co., 31 N. J. Eq., 475; Coe v. Railroad Co., 34 N. J. Eq., 266; Swinney v. Railroad Co., 59 Ind., 205; McGrew v. City Produce Exchange, 85 Tenn., 572; Montgomery v. Forbes, 19 N. E. Rep., 342; Railroad Co. v. Miller, 51 N. W. Rep., 981; Brundred v. Rice, 32 N. E. Rep., 169; State ex rel. v. Standard Oil Co., 30 N. E. Rep., 279; Bank v. Trebein Co., 52 N. E. Rep., 834; Kellogg v. Bank, 48 Pac. Rep., 587; Chapman v. Railroad Co., 1 Re., 559; 10 W. L. J., 391;
      Bartholomew v. Bentley, 1 Ohio St., 37; Sinking-Fund Cases, 99 U. S., 700; Hoke v. Henderson, 4 Dev., 1; Wright v. Crane, 13 S. & R., 452; Hadley’s Railroad Transportation, 1; Wells’ Economic Changes, 42; Munsey’s Magazine, Vol. 21, 441; New Mexico v. U. S. Trust Co., 172 U. S., 171; Keener v. Railway Co., 31 Fed. Rep., 126; Joy v. St. Louis, 138 U. S., 1; St. Onge v. Day, 11 Colo., 368; Railroad Extension Co. v. Railroad Co., 24 Atl. Rep., 709; Railroad Co. v. Railroad Co., 77 Pa. St., 173; Railway Co. v. Clarke, 121 Mo., 182; Beekman v. Railroad Co., 3 Pai. Ch., 45; Cooley Const. Lim. (6 ed.), 664; Randolph Eminent Domain, Sec. 103; Coal Co. v. George’s Creek C. & L. Co., 37 Md., 537; In re Railroad Co., 12 N. Y. Supp., 566; Lecoul v. Police Jury of the Parish of St. James, 20 La., 308; Re Extension of Second Street, 23 Pa. St., 346; Pittsburg Junction Railroad Co., Appeal of, 122 Pa. St., 511; Water Works v. Water Works, 28 Pac. Rep., 447; Water Works v. McGrath, 56 N. W. Rep., 680; Harvey v. Railway Co., 174 Ill., 295; Greenwich v. Railway Co., 24 N. J. Eq., 217; In re Railroad Co., 33 N. W. Rep., 701; Smith v. Hall, 72 N. W. Rep., 427; Pierce on Railroads, 159; Sater v. Railroad Co., 1 Ia., 286; Boom Co. v. Patterson, 98 U. S., 403; Murray v. Stanton, 99 Mass., 348; Fairfax v. Railroad Co., 73 N. Y., 167; Green v. Railroad Co., 128 Mass., 221; Railroad Co. v. Braham, 79 Pa. St., 447; Railroad Co. v. Douthet, 88 Pa. St., 243; Cooley’s Const. Lim. (6 ed.), 691; Railway Co. v. Woodruff, 49 Ark., 381; Railroad Co. v. Reany, 42 Md., 117; Railroad Co. v. Chicago, 140 Ill., 309; Hannibal v. Railroad Co., 49 Mo., 480; Railroad Co. v. Drummond, 46 N. J. L., 644; Kansas City v. Railroad Co., 102 Mo., 633; Springfield v. Railroad Co., 4 Cush., 63; Crossley v.
      O’Brien, 24 Ind., 325; Plankroad Co. v. Railroad Co., 13 Ind., 90; Eaton v. Railroad Co., 51 N. H., 504; Railroad Co. v. Railroad Co., 16 Hun, 445; Allen v. Russell, 39 Ohio St., 336; City of Warren v. Davis, 43 Ohio St., 447; Ebersole v. Schiller, 50 Ohio St., 701; Powers v. Railway Co., 33 Ohio St., 429; Street Railway Co. v. Street Railway Co., 50 Ohio St., 603; Railway Co. v. Railway Co., 3 Circ. Dec., 566; 6 C. C. R., 521; Bridge Co. v. Magruder, 63 Ohio St., 455; Railway Co. v. Bailey, 39 Ohio St., 170; Railroad Co. v. Hopkins, 19 Ohio St., 279; Railway Co. v. Wick, 35 Ohio St., 247; 2 Thompson on Trials, Sec. 2708; Pipe Line Co. v. Fee, 62 Ohio St., 555; Railroad Co. v. Blinn, 46 Bull., 250; Bank v. Moderwell, 59 Ohio St., 221; Nimmons v. Westfall, 33 Ohio St., 213.

      Messrs. Henry & Robert Neiobegin and Mr. Frank L. Loesch, for defendant in error,
    cited and commented upon the following authorities:

      Bridge Co. v. Magruder, 63 Ohio St., 455; Giesy v. Railway Co., 4 Ohio St., 325; Boom Co. v. Patterson, 98 U. S., 403; Railway Co. v. Bailey, 39 Ohio St., 170; Luxton v. Bridge Co., 147 U. S., 337; Railway Co. v. Postal Telegraph Cable Co., 179 U. S., 641; Brundred v. Rice, 49 Ohio St., 640; State ex rel. v. Standard Oil Co., 49 Ohio St., 137; Bank v. Trebein, 59 Ohio St., 316; Railroad Co. v. Postal Tel. Cable Co., 111 Fed. Rep., 842; Shadford v. Railroad Co., 34 C. L. N., 291; Kline v. Wynne, 10 Ohio St., 223; Labold v. Wilson, 2 Circ. Dec., 586; 4 C. C. R., 345; Bartoon v. Bank, 8 Circ. Dec., 27; 14 C. C. R., 450; Railway Co. v. Thurstin, 44 Ohio St., 525; Arrowsmith v. Harmoning, 5 O. F. D., 519; 118 U. S., 194; Dodson v. Cincinnati, 34 Ohio St., 276; Railway Co. v. Railway Co., 30 Ohio St., 604; Railway Co. v. Fostoria, 4 Circ. Dec., 602; 7 C. C. R., 293; Powers v. Railway Co., 33 Ohio St., 429; Platt v. Pennsylvania Co., 43 Ohio St., 228; Railroad Co. v. Chicago, 166 U. S., 226; Railroad Co. v. Postal Tel. Co., 173 Ill., 508; Postal Tel. Cable Co. v. Railway Co., 104 Fed. Rep., 624; Postal Tel. Cable Co. v. Railroad Co., 65 Pac. Rep., 735; Elster v. Springfield, 49 Ohio St., 84.
   Price, J.

The controversy between the parties to this case opened in the probate court of Crawford county in August, 1899, and it has been carried on with unremitting vigor through that and the inter-, vening courts, and its various phases have been elaborately presented to this court in briefs:

Some of the arguments, and a large amount of statistical and historical matter found in the almost unlimited brief for plaintiff in error, are wholly superfluous, and we are asked to pass upon numerous questions which- counsel discuss therein, many of which are no longer material, and tend only to obscure, if not to lose sight of, the necessarily vital points found in the record.

Sifting the wheat from the chaff of the case, the subject of our labor may be divided into two branches-: (1) The proceedings had on the petition of The Ohio Postal Telegraph-Cable Co. against the Railway Company in the probate court for the purpose of appropriation to its use of part of its right-of-way, and which is called the preliminary hearing. (2) The questions arising on the trial before the .jury for the assessment of compensation to the railway company.

(1) It is-forcibly pressed upon our attention, by counsel for defendant in error, that by reason of the neglect of plaintiff in error, the proceedings at the preliminary hearing are not before us, because its motion for a new trial was not filed witbin tbe statutory time in sucb cases, and that tbe bill of exceptions purporting to contain tbe preliminary proceedings was not prepared and allowed witbin tbe time prescribed by statute. And we are cited to tbe record of tbe court of common pleas, where we find that for tbe above reasons, that court struck from tbe files tbe bill of exceptions and dismissed tbe petition in error filed therewith by tbe railway company. And we further find that tbe circuit court affirmed tbe court of common pleas in so doing. This is complained of in this court as erroneous in case No. 7778 between tbe same parties, and which is a close companion of this case, and as sucb will be decided presently. However, we do not regard that controversy as very important now, and we may and do ignore tbe bill of exceptions as being properly stricken from that case; and yet we have remaining in tbe record a vital question as to tbe jurisdiction acquired by tbe probate court, and this is exhibited in tbe certified transcript of that court, which was a necessary part of tbe record in each of tbe reviewing courts, and also of tbe record in this court. This is properly so, in order that we may have a continuous chain of tbe controversy from its inception in August, 1899, down to the last verdict and judgment of tbe trial court in March, 1901.

An issue was made up between tbe defendant in error and tbe railway company, when tbe latter denied each and every allegation of tbe petition asking tbe appropriation.

Tbe petition was more than tbe ordinary petition to appropriate the property of another, and it was so necessarily, because the statute under which the petitioner was proceeding required averments of fact not usual, or required in other cases of appropriation. After fully describing what ground it desired to use and what it expected to place and erect on the premises desired, and other facts, to give the court jurisdiction ,to hear the case, it is alleged: “Plaintiff says that the erection of said telegraph line upon said right-of-way of said railway company, will not in any material degree interfere with the practical or usual and ordinary uses to which said railway company is authorized to put such right-of-way; but, that if this Honorable Court, nevertheless, shall be satisfied that the construction of said line, in any place, will interfere in any material degree with such use of the right-of-way by the defendant railway company, this plaintiff hereby offers and stands ready at all- times to construct and erect the line at such other places and in such manner as this Honorable Court shall direct and require.”

This language as a part of the petition would naturally occur to the pleader on the reading of the .statute under which the telegraph cable company was proceeding.

The act authorizing the steps taken by defendant in error was passed March 31, 1865, and so far as we know judicially, has had a silent and harmless existence until it was invoked in this case. By Section 3456, Revised Statutes, a magnetic telegraph company may enter upon any land whether owned by an individual or corporation, for the purpose of a preliminary survey and examination, with a view to locating and erecting its lines, and that it “may appropriate so much thereof as may be 'deemed necessary for the erection and maintenance of its telegraph poles, piers, abutments, wires and other necessary fixtures, and for stations, and the right-of-way over such lands and adjacent lands sufficient to enable it to construct and repair its lines.”

The next section, 3157, limits the right of occupation by the telegraph company, so that it may not interfere with buildings and enclosures belonging to the landowner.

It is provided in section 3158: “When lands sought to be appropriated for'lines of magnetic telegraph, are held by a corporation incorporated under any law of this state, whether held by purchase, or in virtue of any appropriation authorized by its charter or by any law of this state, the right of the company to appropriate such lands shall be limited to such use of the same as shall not, in any material degree interfere with the practical uses to which the company is authorized to put such lands under its charter * * *.”

Because of this express limitation on the right to appropriate the lands of an Ohio corporation, it was incumbent upon the telegraph cable company to plead, in its petition, a proposed condition which would be within the statutory limitation, and it so pleads, as we have quoted from that petition. Therefore, when the railway company denied, as it did, each and every allegation in the petition, the averment quoted was put in issue, and the burden of proof was upon the petitioner to satisfy the probate court of the truth of that, as well as other jurisdictional averments. It is not difficult to see how important the inquiry would be on this subject of probable conflicting uses. In this case the property to be used is the right-of-way of a railroad company, holding an Ohio' charter, as the petition avers, and it devolved upon the petitioner to satisfy the probate court that the use and occupancy it desired, would not “m any material degree interfere with the practical uses to which the company is authorised to put such lands under its charterThis recognizes the well settled rule that property devoted to one use cannot be subjected to another use, unless it be consistent with the first.

The briefs of counsel are silent on this subject, and we cannot find in them any statement tending to show whether or not any evidence was introduced on the preliminary hearing touching this question, and, unless we look into the forbidden bill of ex-céptions, we cannot know with absolute certainty. But we have a right to assume that no such testimony was offered or received, because the record of the probate court is entirely silent and contains no finding upon the subject; and in this, we think that record is fatally defective.

Section 3459, Revised Statutes, provides that: “The right of such company to use lands held by a railroad company, for the permanent structures of said telegraph, shall be limited to the land which lies within five feet of the outer limits of the right-of-way of the railroad company, where it is practicable to erect the line within those limits; when the company seeks to appropriate lands that lie beyond those limits, its petition must set forth the facts, showing that it is impracticable to erect such lines within said limits * * *. The probate court shall in all instances determine, if it be controverted by the railroad company, whether the erection of the line at the place or places designated, will in any material degree, interfere with the practical uses to which such railroad company is authorised to put such lands, and if the court is satisfied that it will so interfere, it shall reject the petition, or require the structure to be erected .at such other place or places, as the court shall direct * *

In the case at bar the telegraph company desired to appropriate to its nse the, outer five feet of the right-of-way of the railroad company, and it alleged that such use would not interfere in any material degree with the practical uses of the right-of-way by the railroad company. This was controverted by the latter company by answer in the probate court. On the controversy, the above statutes make it the duty of that court to determine as a jurisdictional fact, whether or not the desired use and occupancy, will interfere in any material degree with the practical uses the railroad company has a right to make of its right-of-way. The court had no discretion on the subject, because the statute is mandatory. It is a wise provision and is intended to ascertain, to some extent at least, in advance of calling of a jury to assess compensation, whether the desired use will be compatible with the rights of the railroad company.

How does the record stand on this point? As seen from the entry copied in the statement of this case, the probate court made no finding on the issue joined as to the conflicting use. The findings are such only as are made in the ordinary case for the appropriation of property, as follows: “Now on this sixteenth day of January, A. D. 1900, the court being fully advised in the premises, do find that the plaintiff is a corporation, and has a legal right to make the appropriation of the property described in the petition as prayed for; that the plaintiff is unable to agree with the owners of the property as to the amount of compensation to be paid therefor, and that there is a necessity for such appropriation as prayed for in the petition; and the court proceeding as directed by statute, orders and directs that a jury be drawn,” etc.

These findings are. such as are contemplated' by Section 6420, Revised Statutes, which is a part of the general act for appropriation of property. But the telegraph company, in order to avail itself of that act, to enter upon and appropriate the use of a part of a right-of-way from another corporation, must, bring itself within the provisions of the law, which authorize such a proceeding, and, plead and prove the additional jurisdictional fact, upon which the court can authorize the appropriation. The facts were plead, but no hearing was had upon them, as we assume, for the court did not pass upon them.

We regard the finding required in section 3459, supra, as essentially jurisdictional, and that it would he the chief stone in the foundation upon which the telegraph company must base its right to institute ■and conduct the inquiry as to compensation to the OAvner; and where this chief stone, prescribed by statute to he laid at the preliminary hearing is absent, the superstructure will not withstand attack, especially when made in a direct proceeding.

Adopting the above course of reasoning, we are of opinion that the probate court did not obtain jurisdiction to order the appropriation and make the order of an inquiry of compensation before a jury. If the petitioner made no proof under S ection 3458, Revised Statutes, supra, the petition should have been rejected.

2. What we have said under the first branch of the case, might well terminate our labor; but as the reversal will take the case back to the probate court, for a new preliminary hearing on the petition and answer, it is best to dispose of the grave contention concerning the true measure of damages to be adopted for the guidance of the jury, if the case should reach that stage and require, as it would, an inquiry and assessment of compensation.

The record of the trial on this subject in the lower court discloses many vain efforts on the part of the railroad company to introduce -some evidence of the threatened invasion of its rights and its injurious consequences. It succeeded in qualifying some of its witnesses to give testimony as to the value of its right-of-way, with and without the incumbrance of the telegraph company, but they were not allowed to state what the difference in value would be. Various other forms of inquiry were resorted to in order to reach the measure of compensation, but none were satisfactory to the court, and in the end there was no evidence admitted upon which the jury could pass. Therefore the verdict of the jury was rendered practically without any evidence, except it be the charge of the court.

Some of the evidence offered was properly excluded, but in all the rulings of the court upon the constant controversies over the introduction of testimony, the court was content with sustaining objections, and at no time, did it undertake to lay down any rule by which counsel might be guided. And after the close of all vain efforts, the court, after reading the petition and answer, gave the following and only charge:

“The court charges you that the damages sustained by the railroad company by such use of said five-foot strip by the plaintiff, the telegraph company, can only be nominal damages. Nominal damages in this case .may he anywhere from $100 to $500.
“Your verdict will be for the defendant for such damages as you find it has sustained within the above limits.”

The jury took the suggestion of the court and returned a verdict for $500.

In our judgment the instruction is not the law of the case, nor is it even a faithful remembrance of the meaning of “nominal damages.”

It is said that the trial court obtained the above standard of compensation from the following and similar cases cited in brief of defendant in error: Railroad Co. v. Postal Tel. Cable Co. (Tenn.), 41 L. R. A., 403; case between same parties before supreme court of Alabama, 24 Southern Reporter, 408; Postal Tel. Cable Co. of Idaho v. Railroad Co., 104 Fed. Rep., 623; case between same parties, 111 Fed. Rep., 842; Postal Tel. Cable Co. of Utah v. Railroad Co., 65 Pacific Rep., 735; Railroad Co. v. Postal Tel. Co., 173 Ill., 508; Railroad Co. v. Chicago, 166 U. S., 226.

Wej'have examined those cases and the facts upon which’ they stand, and the rule held in most of them is entirely different from the instruction given by the trial court in this case. True, in two of the cases, the judges deciding them use the term “nominal damages” as the standard of recovery, but it was a conclusion from the facts of the case in hand, and not as a rule of law to govern in other cases. The two cases referred to are Railroad Co. v. Postal Tel. Cable Co., 41 L. R. A., 403; same parties, 24 Southern Reporter, 408. But they quote and approve the rule adopted in the other cases,- which we will briefly notice.

In Postal Tel. Cable Co. of Idaho v. Railroad Co., 104 Fed. Rep., 623, supra, Beatty, District Judge, held: “The compensation which a telegraph company is required to pay for the right to construct and maintain its line upon the right-of-way of a railroad company, is the amount of decrease in the value of the use of such right-of-way,. for railroad purposes which will result.”

That case went to the circuit court of appeals, where it was affirmed, and is found in 111 Fed. Rep., 842, supra. Other questions than compensation were involved on which the district 'court was affirmed, and the court of appeals would not reverse alone because it was claimed the amount of compensation was inadequate, that question being peculiarly one for the trial court, rather than a court of error.

In Postal Tel. Cable Co. of Utah v. Railroad Co., 65 Pac. Rep., 735, supra, the court found as a fact that the part of right-of-way sought to be condemned by the telegraph company, was idle property and not then used for any purpose by the railroad company, and hence the opinion as to nominal damages.

In Railroad Co. v. The Postal Tel. Co., 173 Ill., 508, supra, the court favored the rule as stated in 13 syl.: “The measure of damages where a telegraph company condemns a right-of-way for its use along and upon a railroad right-of-way, is the value of the land actually taken for placing the poles, and the extent to which the value of the use of the portions between the poles and under the wires, for railroad purposes, is diminished by their use by the telegraph company.”

In Railroad Co. v. Chicago, supra, the city of Chicago instituted proceedings to open and extend one of its public streets over the tracks of the railroad, and one of the controversies was over the measure of compensation and damages. The case reached the Supreme Court of the United States, as found in 166 U. S., 266.

In the consideration of the amount of compensatidn allowed to the railroad company in the state courts, the Supreme Court of the United States decided, that it could not examine the evidence to determine whether the verdict was inadequate or not, inasmuch as its review was confined to fundamental questions of law. As to the lawful measure of compensation on the facts of that case, the court held the following proposition: “In a proceeding in a state court in Illinois, to ascertain the compensation due a railroad company, arising from the opening of a street across its tracks — the land as such not being taken, and the railroad not being interfered with only so far as the right to its exclusive enjoyment for purposes of railroad tracks was diminished in value by subjecting the land within the crossing to public use as a 'street — the measure of compensation is the amount of decrease in the value of its use for railroad purposes caused by its use for purposes of a street, the use for the purposes of a street being exercised jointly with the company for railroad. purposes.”

Other cases cited for defendant in error, are not materially different, and we will not review them. Enough is seen in all of them to determine, that the competent evidence of the injury and inconvenience to be incurred by creating the second easement, are to be the basis of just compensation, and unless the facts show that no substantial damage will be sustained by the railroad company, tlie court is not warranted in charging the jury, that merely nominal damages can be recovered.

The petition for the appropriation in this case detailed the size, height and character of poles to be erected on the right-of-way or the five-foot strip thereof, and the other fixtures to be placed along the line. Full inquiry was competent at the trial for compensation, to develop what the real situation would be when the telegraph company would have its line completed and in operation.

The width and character of the right-of-way of the railroad along the entire line to be so encumbered, is also competent, so that the jury might have fully as possible, what the new use by the telegraph company will be.

Of course, it will not and can not appropriate in fee simple any part of such right-of-way, nor abridge the right of the railroad company to the use of its entire right-of-way, except so far as it may be necessary for the new easement to be created and used for a line of telegraph; that is, to plant and erect poles, string the wires and make a complete line of telegraphic communication as detailed in the petition for appropriation, and the right to enter and go along the line to make needed improvements and repairs inside the foregoing limits.

Another observation in this connection should not be overlooked, and in this respect the statutes of this state may be unlike those of states from which above' cases have been taken.

Our general assembly has imposed on railroad companies certain duties in caring for and maintaining their rights-of-way, so that the public, and especially adjoining landowners may not suffer from fires which start on -railroad premises. Other restrictions are placed upon the use and condition of the right-of-way. Whatever these imposed obligations may be, we think they may be properly taken into account, inasmuch as the telegraph company does not assume them, nor are they imposed upon it by reason of its joint occupancy of a part of the right-of-way.

It seems quite reasonable, that when a telegraph company, by virtue of the statute, condemns to its use a part of the premises of one of the trunk line railroads of the country for the distance appearing in this case, that more than mere nominal damages or compensation may be involved.

From the best light we have upon the law applicable to this case, we believe the measure of compensation should be the amount which the right-of-way of the railroad company for railroad purposes, is diminished in value by the proposed easement of the telegraph company; or, in other words, the amount of the decrease in the value of the use of such right-of-way for railroad purposes, which will be caused by the appropriation of an easement on the same for the purpose of erecting and maintaining a telegraph line reon.

c may be said that this rule should be modified ' r limited in its application, because of the provision the statute authorizing the appropriation, where the railroad company, at any future time, may notify the telegraph company that it needs for railroad purposes, a part or all of the ground occupied by it, in which event the telegraph company is required to yield possession and locate elsewhere. We think there should be no such modification for that reason.

The appropriating company, desiring to avail itself of a statute containing such a provision, assumes all the risks of being ousted in whole or in part, and ventures upon gaining possession and holding it against the will of the railroad' company. The latter does not welcome the new companion, and, it may, in course of time, be asked to give way to the needs of the railroad. But it may not comply, and litigation will follow to secure full possession to the owner of the right-of-way. Of the probability of these sequences, the telegraph company has full knowledge, and it can not insist that such probable results should mitigate the compensation to be paid for the right of appropriation.

In conclusion we find that the trial court erred in ‘the charge to the jury, and the circuit court erred in affirming the judgment of the former.

The judgments of the circuit court, the court of common pleas, and the probate court are reversed, and the cause is remanded to the probate court, for a new preliminary hearing on the petition and answer thereto, and for further proceedings according to law.

Judgments reversed.

Burket, C. J., Spear, Davis, Shauok and Crew, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. The Ohio Postal Telegraph Cable Co. et al.
    Error to the Circuit Court of Crawford county.
   Price, J.

This proceeding involves the legal sufficiency of the same findings and orders made by the probate court, which have been considered in the preceding case. For the reasons stated in the first branch of the opinion in that case, we reverse the judgments of the circuit court, the court of common pleas, and the probate court, and the cause is remanded to the probate court as in preceding case.

Judgment reversed.


author: Shauck, J.

text:
    The Shinkle, Wilson and Kreis Co. v. Birney and Seymour.

      ■Relation of lessor and lessee — Arises from, contract — Condition of premises — Lessee cannot maintain action against lessor, when.

    The relation of lessor and lessee arises out of contract, and, where there is neither express warranty nor deceit, the latter cannot maintain an action against the former on account of the condition of the premises hired.
    (Decided May 19, 1903.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff, The Shinkle, Wilson & Kreis Co., brought suit against the defendants in the court of common pleas, to recover the value of a quantity of sugar, which it had stored in a warehouse leased from the defendants, and which was destroyed by the alleged defective condition of the warehouse. The allegation of the petition, upon which the liability of the defendants is said to arise, is as follows:
    “Plaintiff states that said premises were not at the time of the making of said contract, and for a long time prior thereto had not been in sáfe or suitable condition for the purposes aforesaid, or for any other purpose, but that the defendants had negligently and wrongfully allowed the same to fall into decay and disrepair, by reason of which said premises, at the time of and before the making of said contract, were in an unsuitable, insecure and dangerous condition. All of which facts were well known to said defendants and unknown to this plaintiff.”
    On issues of fact joined the cause was submitted to the court without the intervention of a jury, and the facts were found, in substance, as follows: In January, 1897, plaintiff leased from the defendants the five-story brick and stone building constructed for and used as a warehouse, in the city of Cincinnati; the building had been constructed something more than thirty years before, its construction being-proper according to the understanding of architects at the time of its erection; the building was situated in the lower portion of Cincinnati, which was subject to overflow from the Ohio river, and these conditions, with lapse of time, had produced a dry rot in the timbers of the building, which defect did not appear to any one making a visual examination; shortly after the leasing of the warehouse the plaintiff stored in it a large quantity of sugar, which would not have been an excéssive weight for the floors to carry if the girders had been in their normal condition; but, owing to the invisible decay, their resisting power was only a little more than fifty per cent, of normal. Owing to this condition of decay, and a method of construction which has been superseded, the building collapsed, and the plaintiff sustained a loss of something more than $16,000. At the time of the leasing, the premises were visually inspected by a representative of the lessee. The decayed condition of the girders, though not apparent to the eye, might have been ascertained by active investigation by tapping and boring. Such active investigation was not made by either party, and neither the lessors nor the lessee knew of the defective construction, or of the decay. Upon this state of facts the court rendered judgment for the defendants, the lessors. On petition in error the judgment of the court of common pleas was affirmed by the circuit court. This is a petition in error for the reversal of both judgments.

      Mr. Robert Ramsey, for plaintiff in error,
    cited and commented upon the following authorities:

      Cowen v. Sunderland, 145 Mass., 363; Booth v. Merriam,. 155 Mass., 521; Minor v. Sharon, 112 Mass., 477; Bowe v. Hunking, 135 Mass., 380; Martin v. Richards, 29 Me., 591; Wilcox v. Hines, 100 Tenn., 538; Lowell v. Spaulding, 50 Am. Dec., 776; Edwards v. Railroad Co., 98 N. Y., 256; Tuttle v. Manufacturing Co., 145 Mass., 174; Kern v. Myll, 80 Mich., 530; Thum v. Rhodes, 12 Colo. App., 245; Moore v. Parker, 64 Pac. Rep., 975; Carson v. Godley, 26 Pa. St., 111; Krueger v. Ferrant, 29 Minn., 385; Cutter v. Hamlen, 147 Mass., 471; Leavitt v. Fletcher, 10 Allen, 119; Foster v. Peyser, 9 Cush., 242; Readman v. Conway, 126 Mass., 374; Milford v. Holbrook, 9 All., 17; Burns v. Solomon, 4 Dec., 232; 3 N. P., 185; Dorse v. Fisher, 10 Re., 163; 19 Bull., 106; Toledo R. Est. & Inv. Co. v. Putney, 10 Circ. Dec., 698; 20 C. C. R., 486; Hohly v. Sheely, 11 Circ. Dec., 678; 21 C. C. R., 484; Wright v. Tuttle, 4 Day, 313; Davis v. Lyman, 6 Conn., 249; Marshall v. Craig, 1 Bibb, 379; Johnson v. Hollensworth, 48 Mich., 140; Hallett v. Wylie, 3 Johns., 44; Taylor v. Preston, 79 Pa. St., 436; Josling v. Kingsford, 13 C. B. N. S., 477; Iron Works & Dry Dock Co. v. Douglas, 84 Md., 44; Osgood v. Lewis, 2 Har. & Gill, 495; Benjamin on Sales, Secs. 600, 644, 645; Gardner v. Lane, 9 All., 492; Dounce v. Dow, 64 N. Y., 411; Tillyer v. Glass Co., 7 Circ. Dec., 209; 13 C. C. R., 99; 1 Wood on Land. & Ten., Sec. 135; Gregor v. Cady, 82 Me., 131; Gill v. Middleton, 105 Mass., 477; Collier v. Collier, 96 N. Y., 94; Dayton v. Hooglund, 39 Ohio St., 671; Railway Co. v. Schneider, 45 Ohio St, 698; Leach v. Church, 10 Ohio St., 148; Jones v. Brown, 11 Ohio St., 601; Albright v. Hawk, 52 Ohio St, 362; Bullock v. Mitchell, 9 Re., 687; 16 Bull., 354; Railroad Co. v. Crawford, 24 Ohio St., 631; Railroad Co. v. Rathgeb, 32 Ohio St., 66; Shackford v. Coffin, 95 Me., 69; Roehrs v. Timmons, 63 N. E. Rep., 481; Land v. Fitzgerald, 52 Atl. Rep., 229; Steamship Co. v. Hamilton, 112 Ga., 901; Schwalbach v. Shinkle, 10 O. F. D., 34; 97 Fed. Rep., 483.

      Messrs. Conner & Walker and Messrs. Harrison & Aston, for defendants in error,
    cited and commented upon the following authorities:

      Schwalbach v. Shinkle, 10 O. F. D., 34; 97 Fed. Rep., 483; Dyer v. Robinson, Court Index, 1; Felton v. Cincinnati, 13 O. F. D., 68; 95 Fed. Rep., 336; Bowe v. Hunking, 135 Mass., 380; Edwards v. Railroad Co., 98 N. Y., 245; Franklin v. Brown, 118 N. Y., 110; McKeon v. Cutter, 156 Mass., 296; McKinzie v. Cheetham, 83 Me., 543; Towne v. Thompson, 46 L. R. A., 748; Reissman v. Jacobowitz, 49 N. Y. Supp., 1006; Emery v. Industrial Exposition, 56 Minn., 460; Wilson v. Treadwell, 81 Cal., 58; Naumberg v. Young, 44 N. J. L., 331; Keates v. Earl of Cadogan, 10 C. B., 591; Gott v. Gandy, 2 E. & B., 845; Taylor on Land. & Ten. (17 ed.), Sec. 175a; Hines v. Wilcox, 96 Tenn., 148; Wilcox v. Hines, 46 S. W. Rep., 297; Schmalzried v. White, 97 Tenn., 36; Cowen v. Sunderland, 145 Mass., 363; Booth v. Merriman, 30 N. E. Rep., 85; Cutter v. Hamlen, 147 Mass., 471; Mechem on Agency, Sec. 350; Wharton, Sec. 124.
   Shauck, J.

At the opening of his brief counsel for the plaintiff in error defines his position in the case Avith his usual clearness and frankness, as folIoavs: “I concede the rule of caveat emptor as to contracts of lease or hire generally. Formerly the only exception to this rule Avas in cases of fraudulent misrepresentation or concealment on the part of the lessor; but in recent years another and most important exception, has been added.” The soundness of the former member of this proposition appears from a long line of consistent adjudications by courts administering the common law. In lieu of the second member it should be stated that in a recent decision the addition of another, and an important exception to the rule, has been proposed. A rapidly developing civilization has made * all concerned in the administration of justice familiar with the frequently recurring necessity for extending established principles of the law to new conditions • and cases. But since the case before us presents no incident of the relation of landlord and tenant which did not appear in the earliest cases, the precise question is whether the generations of judges who established the admitted rule were mistaken in denying the important exception now proposed. The observation of Erie, J., in Gott v. Gandy, 2 E. & B., 815, is pertinent here: “The absence of authority to show a duty as between landlord and tenant is very strong against the existence qf such a duty. For the relation of landlord and tenant is a very ancient legal relation, and has always been a very common one; and, as there must have been a strong interest in numerous cases to enforce such a duty if it existed, the absence of authority is almost decisive. And on principle I think that, not only is no principle shown from which this duty might be inferred, but that the plaintiffs ask us to violate a very important legal principle. For it is most important that parties making a- contract should be permitted to regulate the terms for themselves, and that courts of.law should decide upon the terms which it appears to have been the intention of the contracting parties to agree upon. The present action is in form an action for a wrong; but it is in substance for the breach of a duty arising from a contract between landlord and tenant. The plaintiffs ask us to interpolate into that contract a term without showing anything from which it might appear that it was intended by the parties that there should be such a term.”

That case, in strict accordance with very numerous cases preceding and following it, shows that the foundation of a landlord’s liability in cases of this character arises out of contract. Certainly, as in all cases arising out of contract, there has been uni-formly recognized a liability "for fraud in the making of the contract.

For reasons too obvious to require a statement, it has always been held that if the lessor has knowledge of defects in the premises which are not discoverable by the tenant upon practicable examination, and which will imperii his person or property, a liability arises from" the fraudulent concealment of such defects; and, in the application of this rule, the terms, fraud, fraudulent concealment, constructive fraud and deceit are synonymous. In accordance with this view the general and admitted rule upon the subject is as stated in Jaffe v. Harteau, 56 N. Y., 398, as follows : “A lessor of buildings, in the absence of fraud or any agreement to that effect, is not liable to the lessee or others lawfully upon the premises for their condition or that they are tenantable and may be safely and conveniently used for the purposes for which they are apparently intended.” This statement of the rule has been frequently quoted and approved. Its absolute determination of the rights of lessor and lessee was never denied until recently.

It is not contended that this rule would permit a recovery by the plaintiff upon the facts found in the present case, but that recent cases have so enlarged the rule that the landlord is now liable if he does not discover and disclose defects which he might have discovered by active investigation. In this supposed migration of the law Cowen v. Sunderland, 145 Mass., 363, is said to be a leading case, but the judgment in that case conforms to the general rule, since the lessor had himself created and concealed the conditions from which the injury resulted. Some inattention to the meanings of words appears in the opinion in that case, but it did not mislead the court in the judgment rendered, nor will it mislead others if it is remembered that the rule does not permit an “implied warranty” and that a' lessor who, with knowledge, conceals sources of peril which are not discoverable by the lessee, is not guilty of negligence but of fraud. Nor does the migratory movement appear in Minor v. Sharon, 112 Mass., 477, or in Cutter v. Hamlen, 147 Mass., 471, for in those cases the lessors had actual knowledge of conditions which could not be discovered by the lessees, and which would imperil the health and lives of their families. It was because of the concealment of those known conditions that the lessors were adjudged to be liable, the view of the court being that actual knowledge of conditions from which peril will naturally arise, is tantamount to like knowledge of the peril. That the supreme judicial court of Massachusetts regards this subject as within the rule that it is the judicial function to declare and apply the law as it is, appears very clearly in Bowe, Admr., v. Hunking et al., 135 Mass., 380, where the ground of decision is concisely stated to be “that no action lies by a tenant against a landlord on account of the condition of the premises hired in the absence of an express warranty, or of actual deceit.”

But counsel for the plaintiff is justified in the claim that the doctrine for which he contends is recognized in Hines v. Wilcow, 96 Tenn., 148. In that case there was a reversal of the judgment below because the trial judge, intelligently discriminating between fraud and negligence, had, in a' case of this character, instructed the jury in accordance with the established rule as already stated. But it is incorrect to say that the doctrine of that case has ever been followed; except in a later opinion in the same case. It was not followed by tbe supreme court of Kansas in Moore v. Parker et al., 64 Pac. Rep., 975, for the petition which was there held to state a cause of action against the lessor alleged his actual knowledge of the dangerous condition. Nor was it followed in Thum Brothers v. Rhodes, 12 Colo. App., 245, for in that case the judgment was in favor of the lessor, and the established rule was stated as follows: “Where a lease is taken of the portion of a building where dangerous conditions exist, the lessee will be chargeable with knowledge of defects which are patent, and unless he has fortified himself by an express warranty of the safety of the building, or unless his lessor, with knowledge of some defect which endangers the building and which an inspection will not disclose, is guilty of fraud by concealing the defect from him, he will have no remedy against his landlord for a loss sustained in consequence of the unsafe conditions.”

In cases of this character there is no place for the doctrines or phrases of the'law of negligence. Negligence is the violation of an obligation to exercise care. That obligation may inhere in the relations into which parties have been brought by contract, but it is not an incident to the making of the contract. What the law exacts in that regard is not care, but honesty. In the notable exception to the rule of caveat emptor, the obligation of a manufacturer to furnish articles fit for a purpose which has been designated, there is introduced no element from the law of negligence. The obligation is imposed by implied contract. Lawyers have not been mistaken in the universal belief that while the law does not permit one party to defraud the other in the making of a contract, it does not constitute either the guardian of the other. The case chiefly relied upon is not reconcilable with the principles of the law nor with the decided cases which are entitled to be recognized as authoritative. It is attractive only as a suggestion of the intellectual repose which one may enjoy when he determines the liabilities of parties according to his individual notions of personal duty, instead of seeking the grounds of decision in the rules which have been approved by the composite judgment of those who have established our system of jurisprudence. No other question is presented by the facts found below.

Judgment affirmed.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


author: Davis, J.

text:
    The Drake Medicine Co. and Drake v. Glessner.

      Generic, geographical and personal names — May be protected as trademarks, when — Where one carries on business in a particular name and label — Another cannot lawfully assume the same, when — Question of originals and imitations — Law of trademarks. V
    1. la general, generic words, geographical names or the names of persons cannot be valid trade-marks; but when a/geographical name is not used to denote location, and it is used in a merely fictitious sense to indicate ownership and origin/independent of location, it may be a good trade-mark; and the name of the inventor or original maker of an article of traffió^if not used in a way to deceive or defraud, will be protected as'-a trade-mark,- and the right to use such trade-mark and to be protected therein, will pass by assignment.
    2. The name “Dr. Drake’s German Croup Remedy,” so called because the manufacturer and vendor, the plaintiff, obtained the formula from one Dr. August Drake, a German physician, the remedy having been made and sold by the plaintiff for ten years before the remedy of the defendants was brought before the public, in the same place, is a good trade-mark; and the use of the words “Dr. Drake’s Famous German Croup Remedy” by the defendants is an infringement thereof.
    3. Where a person has established a business and reputation for the manufacture and sale of an article of traffic, under a particular name and style of label, whether the words and devices adopted by him constitute a trade-mark or not, another person, whether it be his own name or not, cannot lawfully assume the same name and label, or the same with slight alterations, so as to induce the belief that the imitation is the original; and such use of such name and label will be enjoined on the ground of fraud.
    (Decided May 19, 1903.)
    Error to the Circuit Court of Hancock county.
    The defendant in error commenced an action against The Drake Medicine Co. and Warren W. Drake, in the court of common pleas of Hancock county, alleging as follows:
    “Plaintiff says that he has for many years last past carried on the business hereinafter described under the name of The Glessner Medicine Co., of Findlay. Ohio, that he has complied with all the provisions of Section 3170, Revised Statutes.
    “Plaintiff further says that the defendant, The Drake Medicine Co., is a corporation.
    “Plaintiff says that he is and for many years has been the sole and exclusive owner of the medicine known and called ‘Dr. Drake’s German Croup Remedy’ and of the formula for making the same, and of the good will attached to said medicine, and the business of manufacturing and selling the same under the name aforesaid, and of certain trade-marks under which, and by means of which the medicine is known and sold, adopted by the plaintiff for that purpose in the year 1892, of which the following is a specimen, whereof is shown by exhibit attached hereto and made a part hereof.
    “That the medicine is a valuable remedy for croup, whooping-cough, coughs, hoarseness, etc., and has been manufactured and sold as such by the plaintiff and his predecessors in the ownership of said medicine since prior to the year 1890 continuously to the present time, under and by the name of ‘Dr. Drake’s German Group Remedy,’ and by said name said remedy has become renowned and in extensive demand owing to its merits, and that much time and labor and money has been expended by plaintiff and his predecessors in the manufacture of said remedy, and in placing the same upon the market, and in advertising it, whereby a large and valuable trade in said medicine has been built up throughout the United States of America and the Dominion of Canada and elsewhere, and the business has yielded and still yields large profits and the trade-mark is of great value.
    “The plaintiff further alleges that in addition to the name, ‘Dr. Drake’s German Croup Remedy’ as means of designating said remedy and of preventing the same from being confounded with other alleged remedies, the said plaintiff in the year 1892, adopted as a further and additional trade-mark and designation of said remedy, a method of putting up said remedy. That the said remedy is enclosed in a bottle, which in. turn is enclosed in a pasteboard box 6% x 2y8 x 1% inches, and around said box, and adhering- thereto, is a wrapper or label of a peculiar red color, a copy of which wrapper is hereto attached, and marked Exhibit ‘A’ and made a part of this petition.

      “That notwithstanding the long and quiet use and enjoyment by the plaintiff of said name and trademark, the defendants well knowing the premises, but wilfully disregarding the plaintiff’s rights, thereafter and in January of the year 1901, wrongfully and fraudulently prepared and offered for sale, and now does offer for sale at Findlay, and elsewhere in the United States, an article in imitation of the plaintiff’s article which, with the intent to deceive and defraud the public and buyers and consumers thereof, they have caused to be put up in similar packages and labeled with a nearly similar label, a ■copy of which false label is hereto attached marked Exhibit ‘B’ and made a part hereof.
    “That such imitation and the use of words ‘Dr. Drake’s German Croup Remedy’ and of the said wrapper is calculated to deceive the purchasers and ■consumers of plaintiff’s said article, and actually has and still does mislead many of them to buy the article sold by the defendants, in the belief that it is the article manufactured by the plaintiff, greatly to the diminution of the said business and profits of ¡said plaintiff. That plaintiff only learned of the acts complained of on to-wit: the first day of October, 1901, and that before this action, and on the eleventh day of October, 1901, the defendants were notified by plaintiff that the assumption of the aforesaid trade-mark and label by the defendants were misleading the public into believing that in purchasing-plaintiff’s article and remedy, and requested the said defendants on said day to desist from the use of the plaintiff’s trade-mark and label, yet the defendants refused and still refuse to do so.
    “Plaintiff further says, that the defendant, Warren W. Drake, has falsely and fraudulently given out by speech, act and written advertisement, that he is the Dr. Drake who originated or prepared the formula used in the preparation of plaintiff’s remedy hereinbefore described, when in truth and in fact the said defendant, Warren W. Drake, did not originate or prepare the said formula. That the alleged remedy of the defendants has been extensively advertised among wholesale and retail druggists, and among other persons in the United States and elsewhere, including customers of the plaintiff, and that thereby the defendants have fraudulently sought to take away plaintiff’s trade, and deprive it of great profit, and to impose upon said persons and to make them believe that the said alleged remedy of the defendants is the remedy of the plaintiff; and divers and sundry persons, to the great loss of the plaintiff, have thereby been deceived, and that the defendants will continue their practice unless restrained by this couid from so doing, and thereby the plaintiff will suffer great loss and irreparable damage.
    “Wherefore, plaintiff asks the equitable interference of this court to perpetually enjoin the defendants, and each of them, from using and designating a remedy to be used for the cure of croup, whooping-cough, coughs, hoarseness, etc., by either the words ‘Dr. Drake’s Famous German Group Remedy,’ or any other words resembling the said words, in connection with a cure or remedy for croup, whooping-cough, hoarseness, etc., either alone or in connection with any other words purporting to describe the remedy for such diseases, and from using the labels above described, and that the defendants may be required by an order of this court to withdraw from the market any such packages as they have placed thereon, for sale by wholesale or retail druggists, or any other traders or dealers, and that until the final hearing of the case, the defendants, and each of them, be enjoined according to the prayer thereof, and for all other relief.”
    Fac-Similes of Exhibits A and B, except as to color and size are inserted here.

    The defendants filed answer and cross-petition as follows:
    “For answer to the petition of the plaintiff the defendants deny the same and each and every averment and allegation thereof except as hereinafter in their second answer and cross-petition is stated and alleged.

      “And for their second, and by way of a cross-petition on behalf of the defendant, Warren W. Drake, that defendant says that for more than ten years last past, this defendant has been, and now is, a practicing physician residing and so practicing in the city of Findlay, and in the cities and country contiguous thereto, and that during all of that time this defendant has been, and yet is, the only physician by his name either in said city, in the county of Hancock, or in the state of Ohio, so far as this defendant knows or has been able to ascertain.
    “That some years ago, presumably at the date stated in the petition (1892), the plaintiff who theretofore had been a local reporter on a newspaper published by his brother in said city, promoted and eventually effected the formal organization of a corporation of which the plaintiff retained a controlling interest.
    “That all of the incorporators resided in Findlay, but this defendant had no knowledge of the fact of such organization until some time after it commenced business, and this defendant at no time had any connection therewith or interest therein.
    “That among the persons whom plaintiff succeeded in interesting in his schemes, was one John Weil, a practical druggist, and now residing in said city.
    “This defendant was informed by said Weil, and verily believes and charges the fact to be, that in the organization of their said company, and when it came to the matter of a name for the new artificial hybrid in the world of materia medica, it was then settled and agreed by said plaintiff and Weil that it ought to be named after some Reputable local physician, and that the corporation should be and was named ‘The Drake Medicine Co.,’ of Findlay, Ohio, and the organization so named was incorporated under the laws of Ohio, and chartered in that name, to compound at Findlay, and put upon the market, proprietary remedies so-called in the name of The Drake Medicine Co.
    “This defendant further complains, that very soon after the organization of this so-called medicine company, the said druggist, Mr. Weil, formulated a theory, and theorated a formula for an alleged German croup remedy, which this alleged medicine company began compounding and palming off upon an unsuspecting community at large, and this called croup remedy, they named ‘Dr. Drake’s German Croup Remedy,’ and this they put upon the market under the very shadow of this defendant’s domicile.
    “This compound was quite extensively advertised by the plaintiff. It was put up in a label precisely like that of the plaintiff’s Exhibit ‘A’ except that the word ‘Glessner,’ in that exhibit, occupies the position assumed by ‘Drake,’ in the original label, and in this manner the whole public was given to understand and believe that this defendant was the author of this formula, and responsible for this nostrum; and all this was so done by the plaintiff controlling the business, and without the knowledge or consent of this defendant, and greatly to his annoyance and to his irreparable injury in his profession and practice, in that he was annoyed by curious inquirers concerning his German croup remedy, and tabooed by his professional brethren, for his public advertised connection with proprietary remedies, commonly called patent medicine.
    “That it was some time after defendant began to be injured and announced in this manner, before defendant was able to find who or what it was that was persecuting him, by putting out this alleged medicine in his name and city, but finally learned that it was being so done by the plaintiff, in the name of the company he had so formed, to-wit: ‘The Drake Medicine Co. of Findlay.’
    “That upon learning the plaintiff’s identity with the transaction this defendant in good faith went to his counsel, learned in the law, and stated the matter to him, and asked his advice and assistance to prevent the plaintiff from so putting out such patent medicine in this defendant’s name and town, but defendant was then advised by his counsel that he could not enjoin the plaintiff from so doing and that being without remedy he must submit to the injury, and defendant says that from thence hitherto he has been a martyr to the plaintiff and his alleged ‘Dr. Drake’s German Croup Remedy,’ prepared at Findlay, Ohio, U. S. A.
    “After a time the plaintiff, Drake Medicine Co., disintegrated and as defendant is informed, surrendered its charter, and thereupon, or shortly thereafter, the plaintiff in order to perpetuate his scheme of public deception, formed himself into a partnership, a fictitious partnership, named the Glessner Medicine Co., of which he is all in all, and continues to put out this labeled Dr. Drake’s German Croup Remedy in fraud of the public, and in gross violation of this defendant’s rights.
    “This defendant says that when he found that plaintiff had put him into the patent medicine business before the world, and that his attorney could not get him out, he organized the real only ‘The Drake Medicine Co., of Findlay, Ohio,’ defendant, and put upon the market a croup remedy of his own for which he is responsible, and of which formula he is the author, as he is advised and believes he has a legal right to do.
    “That defendants’ remedy, both upon the label and on the bottle, has the face photograph of this defendant, the author of the formula, and the remedy itself in no way resembles the counterfeit of the plaintiff, so put out in the name of this defendant.
    “Wherefore, the defendants pray that the temporary injunction allowed herein, be dissolved with a finding that plaintiff is not entitled thereto, and that the petition be dismissed at the cost of the plaintiff.
    “The defendant, Warren W. Drake, prays that if it is in the power of this court, that the plaintiff, in his own name or any name, be enjoined from putting out from the city of Findlay, while defendant continues to reside and practice medicine therein, an alleged Dr. Drake’s croup or any other remedy, in the name of this defendant, or purporting to be defendant’s remedies, and that defendant may have such other or further relief in the premises as equity and the nature of the case shall demand.”
    Thereupon the plaintiff filed reply, which is as follows :
    “Now comes the plaintiff, and for his reply to the answer and cross-petition of the defendant, Warren W. Drake, filed in this case, says: That the second answer and cross-petition therein contained does not state facts sufficient to constitute a defense to the petition filed herein, nor does it contain facts sufficient to constitute a cause of action against the plaintiff, .or to entitle the said defendant to the relief prayed for against this plaintiff.
    “For further reply to the answer and cross-petition of the said defendant, Warren W. Drake, plaintiff says, that while he admits that the said defendant is now and has been for some years a practicing physician, residing and so practicing in the city of Findlay, plaintiff avers that said defendant is now, and for some years has been, engaged in vending and placing upon the market certain nostrums or so-called patent medicines of which he claims to be the proprietor, other than the croup remedy described and complained of in the petition filed herein, which later remedy he began placing upon the market in January, 1901, as averred in the petition.
    “Plaintiff further says, that he became the owner of the formula used in the preparation of the croup remedy described in the petition as belonging to him, and has ever since been, and still is, the sole owner thereof and of the right to use the same, and that in the year 1890, he began the manufacture and sale of the same, operating under the name of The Drake Medicine Co., at which time he adopted the trademark described and set forth in the petition herein; that he continued said business as an individual under the name of The Drake Medicine Co. until the year 1892, when an incorporated company was formed under the name of The Drake Medicine Co. to push the business of manufacturing and selling the said croup remedy, but that this plaintiff parted with neither the formula nor the trade-mark in the petition described.
    “Plaintiff admits that the incorporators in said company resided in Findlay, and that the defendant, Warren W. Drake, had no connection therewith.
    “Plaintiff says that said incorporated company was in existence and operation for a few months only, when having failed to comply with its arrangements with him, the said company wholly abandoned the said business, and thereafter this plaintiff resumed his operations as an individual, under the name of The Drake Medicine Co., and so continued until the year 1897, at which time the defendant, Warren W. Drake, having theretofore entered in the patent medicine business as the Drake Chemical Co., the similarity of names led to confusion, and this plaintiff abandoned the use of the name, The Drake Medicine Co., began operation under the name of The Glessner Medicine Co., and has so continued to operate ever since.
    “This plaintiff denies that John Weil was in any way connected with him in his operations, either under the name of The Drake Medicine Co., or under the incorporated company by that name or since.
    “Plaintiff avers that the said John Weil neither originated the formula used in the manufacture of plaintiff’s croup remedy, nor had he any part in the inception, conception, birth or christening of either company or the croup remedy, and that neither the company nor the remedy was named after or for the defendant, Warren W. Drake.
    “Plaintiff says that he was, and is the owner of the formula which was prepared by a Dr. Drake, formerly a resident of the state of Iowa, long before he had ever heard of the defendant, and that he began the manufacture of this croup remedy before he knew the defendant. That in the year 1890, or shortly after, he began operation under the name of The Drake Medicine Co., he advised the public by extensive advertisement in all the newspapers circulating in the city of Findlay and Hancock county, Ohio, and elsewhere, that the defendant, Warren W. Draxe, was not the originator of the formula and was not connected in any way with the preparation, manufacture, or sale of the croup remedy of the plaintiff, and has at all times since, and at all proper occasions advised the public that the defendant, Warren W. Drake, was not in any way connected with either the preparation, manufacture, or sale of his said croup remedy.
    “Plaintiff further avers, that the said defendant, in the same year, by like advertisement, advised the public that he was not connected in any way either with the original preparation, manufacture or sale of plaintiff’s croup remedy.
    “Plaintiff admits that the only change in the label used by him now and in 1892, and thereafter until 1897, is the substitution of the word Glessner for the word Drake, in the name of the medicine company.
    “Plaintiff admits that the defendant’s labels and bottles have the photograph of the defendant thereon, and that the defendant organized The Drake Medicine Co., of Findlay, Ohio, which is now operating and using the trade-mark and label described as Exhibit ‘B’ in the petition and of which complaint is there made, but plaintiff denies each and every allegation of the petition not herein admitted, and prays as in his petition.”
    The court of common pleas found the equities of the case with the plaintiff, dismissed the cross-petition of the defendant, Warren W. Drake, and decreed a perpetual injunction as prayed. On appeal to the circuit court that court also found in favor of the plaintiff, dismissed the cross-petition of Warren W. Drake, and granted a perpetual injunction in favor of the plaintiff, as prayed; and, on request, made the following special findings of fact and conclusion of law:
    “First — At some time prior to the year 1892, the plaintiff, who is neither a physician nor pharmacist, obtained a formula for a croup remedy made and prepared by one, Dr. August Drake, a German physician who formerly resided in the state of Iowa.
    “That afterwards, and about 1890, the plaintiff began the preparation of a croup remedy, and began advertising and putting the same upon the market from Findlay, Ohio, in the name of The Drake Medicine Co., said medicine being after the year 1891, put up and labeled in the manner and upon the label in all respects as described and copied into the petition and exhibit attached thereto marked Exhibit ‘A’ except that the word ‘Drake’ appeared where the word ‘Glessner’ now appears in the name of the company, by which said medicine was so being put out at Find-lay, Ohio.
    “Second — That in and about the putting out and advertising of said his ‘Dr. Drake’s German Croup Remedy,’ in the manner and at the place aforesaid, the plaintiff expended a large amount of money, to-wit: about ten thousand dollars, and that- in and about the conduct of his said business of putting out and vending his said ‘Dr. Drake’s. German Croup Remedy,’ plaintiff has between the time he commenced said business and the time of the commencement of this action, during all of which time he continued said business, has built up a large and lucrative business, and the exclusive right and business of the plaintiff and the good will thereof, in this behalf, is very valuable, to-wit: of the value of ten thousand dollars and upwards.
    “Third — That about the time plaintiff so began putting up and vending said croup remedy, to-wit: in 1892, he adopted as his trade-mark and label, the same trade-mark, to-wit: ‘Dr. Drake’s German Croup Remedy,’ and his said label as attached to the petition, with the words and characters as they appear on said Exhibit ‘A,’ as aforesaid, with the sole exception already indicated. During this time plaintiff changed his business name to the Glessner Medicine Co., and complied with the law in that behalf.
    “Fourth — That during all this time the defendant, Warren W. Drake, was a practicing physician residing and practicing in Findlay, Ohio, and was, and yet is the only physician by that name, residing in said city. That that defendant never in any manner consented to this act or course of business conduct on the part of plaintiff, but on the contrary as soon as he learned who it was that was putting out such proprietary remedy in Findlay in his name, he consulted an attorney and sought to prevent the plaintiff from so doing. That he was advised by this attorney that he could not enjoin or prevent plaintiff from doing that business in that name.
    “That about the first of the year, 1901, the said defendant organized and promoted a corporation, the defendant, The Drake Medicine Co., and without the plaintiff’s consent began putting out from Findlay, an alleged croup remedy in the manner alleged in the petition and under the name and in the label a copy of which was attached to the plaintiff’s petition and marked ‘Exhibit B.’
    “Fifth — That in adopting the label and in the manner of formulating their label and trade-mark, the defendants designed as nearly as possible to imitate plaintiff’s trade-mark and label for the fraudulent purpose of deceiving the public, and defrauding the plaintiff as well, by causing it to be believed by the public that defendant’s remedy was that of the plaintiff, intending thereby to profit by the .good will of plaintiff’s said business and the fame of his remedy with the trade and general public.
    “Sixth — That the similarity in the labels and size, shape, color of the packages and general appearance of the defendant’s remedy is such that it has a necessary tendency to, and does mislead and deceive, customers and the general public, purchasing with ordinary caution, and in these respects, operates as a. fraud upon the general public and the plaintiff, in respect to his property and proprietary rights in his said croup remedy and the good will of his said business. '
    “Seventh — That if the defendants are permitted to continue to put upon the market and vend their said croup remedy in the form, label and manner above described, in competition with that of the plaintiff, they will deceive the plaintiff’s customers and the public, and thereby secure to themselves a large part of the favor and good will belonging of right to the plaintiff in'his said business of vending his ‘Dr. Drake’s German Group Remedy,’ to the great and irreparable damage and injury of the plaintiff, in his said business and the good will thereof, for which the plaintiff would have no adequate remedy at law.
    “Eighth — That plaintiff’s said remedy is valuable, possesses inherent merit, and possesses valuable qualities and properties for the treatment of croup, and the plaintiff never, in any manner consented to these acts on the part of the defendant so in violation of his property rights, but has always objected thereto, and began his action for the redress of his grievances when he learned the identity of the defendants.
    “We find and hold as conclusion of law upon the facts above found, that the plaintiff has the exclusive right to put up and vend from the city of Findlay, Ohio, U. S. A., Dr. Drake’s German Croup Remedy in the manner and form contained in his label, marked Exhibit ‘A,’ and that he has a valid, legal and exclusive right to his said trade-mark and label as his trade-mark for said croup remedy, and that the defendants have no right under the objection of the plaintiff to use or imitate said trade-mark or put up and vend their said croup remedy in their said label, marked Exhibit ‘B,’ in the manner as above found.”
    The petition in error in this court alleges that the findings of the court below were not sustained by the evidence and that the finding and judgment are contrary to law.

      Messrs. Phelps & David, for plaintiffs in error,
    cited and commented upon the following authorities :

      Kellogg v. Larkin, 56 Am. Dec., 164; Harris v. Oil Co., 57 Ohio St., 126; Letts v. Kessler, 54 Ohio St., 73; Feder v. Brundo, 8 Dec., 179; 5 N. P., 275; Caswell v. Davis, 58 N. Y. 223; Popham v. Cole, 66 N. Y., 75; Smith v. Walker, 57 Mich., 474; McLean v. Fleming, 96 U. S., 256; 52 Wis., 577; Robertson v. Berry Co., 50 Md., 591; Brill v. Singer Mfg. Co., 41 Ohio St., 127; Medical Co. v. Wood, 108 U. S., 218.

      Messrs. Ross & Kinder, for defendant in error,
    cited and commented upon the following authorities :

      Piso Co. v. Voight, 6 Dec., 479; 4 N. P., 347; High on Injunctions, Sec. 1063; 26 Am. & Eng. Enc. Law (1 ecL), 241, 245, 260; Rumford Chemical Works v. Muth, 1 L. R. A., 44; Alff v. Radam, 9 L. R. A., 145; McLean v. Fleming, 96 U. S., 245; Jennings v. Johnson, 37 Fed. Rep., 364; Feder v. Brundo, 8 Dec., 179; 5 N. P., 275; Backus Oil Co. v. Backus Car Grease Co., 5 Bull., 546; Brill v. Singer Mfg. Co., 41 Ohio St., 140.
   Davis, J.

The plaintiffs in error were defendants in the court of common pleas. Their defense in that court, and in the circuit court on appeal, as well as their contention on their petition in error here, is embodied in two propositions. (1) That the plaintiff has no trade-mark which can be protected under the law; and if he has such a trade-mark, the defendant’s label and its use do not constitute an infringement of such rights. (2) That the plaintiff’s conduct in the management of his business has been fraudulent as to the defendants and the public, so that he has no standing in a court of equity to complain of the acts of the defendants.

When viewed under the tests of a technical trademark, or trade-name, it may be conceded that there is ample ground for debate. The generic or merely descriptive term “Croup Remedy,” standing by itself, would not be a trade-mark, and there are numerous cases in the reports in which it is held that a geographical name or the name of an individual is not a good trade-mark. And hence it may be plausibly argued, as it is contended in this case, that the plaintiff’s alleged trade-mark, “Dr. Drake’s German Croup Remedy,” is not a trademark at ad. On the other hand, there are strong reasons and high authority for the contention • that a geographical name, when not used in a geographical sense, that is, when it does not denote the location of origin, but is used in a fictitious sense merely to indicate ownership and origin independent of location, may be a good trade-mark. For example, “Liverpool” for cloth made at Hieddersfield, Hirst v. Denham, L. R., 14 Eq. Cas., 542; “Dublin Soap” made in the United States, In re Cornwall, 12 Pat. Off. Gaz., 312; “German Soap” made in the United States, In re Green, 8 Pat. Off. Gaz., 729; “Vienna Bread” for bread made in New York, Fleischmann v. Schuckmann, 62 How. Pr. (N. Y. Sup. Ct.), 92; “Anatolia” stamped on liquorice, McAndrew v. Bassett, 10 Jur. N. S., 492 and 550, per Westbury, L. C.; Browne on Trade-Marks, Secs. 184,185. Upon this distinction it is difficult to understand why the word “German” upon a package which expressly shows that it is made at “Findlay, Ohio, U. S. A.,” may not be a valid trademark.

It is no doubt true that in a technical sense there can be no trade-mark in the name of a person; because all such names are generic, and because, speaking in a general sense, every person has the right to use his own name for the purposes of trade. There is, however, an important qualification of the general rule which is called for in cases like the one now under consideration. The name of the inventor or original maker of an article of traffic, if not used in a way which would be likely to deceive or defraud, will be protected as a trade-mark, and the right to use such trade-mark and to be protected therein, will pass by assignment. Filkins v. Blackman, 13 Bl. C. C., 440; Fulton v. Sellers & Co., 4 Brewst., 42; Skinner et al. v. Oakes et al., 10 Mo. App., 45; Oakes v. Tonsmierre, 4 Woods, 547; and see McLean v. Fleming, 96 U. S., 215; Massam v. Thorley’s Cattle Food Co., 11 Ch. Div., 718. In the present case the plaintiff’s alleged trade-mark identified, as the fact was found by the circuit court, a “croup remedy” which originated with one Dr. August Drake, a German physician who formerly, resided in the state of Iowa, and from whom the plaintiff obtained the formula. In that sense, therefore, the plaintiff’s trade-mark indicates the origin, and is a guarantee of the character and quality of the remedy which was sold with that trade-mark for ten years before the defendant, Warren W. Drake, who resided during all of that time in the same town in Avhich the plaintiff conducted his business, came into the market Avith his competitive product. Warren W. Drake had the right to make and sell a croup remedy different from the plaintiff’s compound, using his own name; but under the circumstances found by the court below he could only do so in such an honest and legitimate manner that the public would not be deceived nor his competitor defrauded. For the reasons stated and upon the facts specially found by the circuit court, which are conclusive here, we are satisfied that the plaintiff has such an interest in the words “Dr. Drake’s German Croup Remedy” as a trade-mark that the use of the words “Dr. Drake’s Famous German Group Remedy” by the defendants is an infringement thereof.

But the plaintiff in error insists that even' if the plaintiff below has a valid trade-mark, the label used by the defendants is not such a simulation of the label of the plaintiff as to entitle the latter to an injunction. They argue that» “the plaintiffs in error put out their own medicine; it AArns a croup medicine; they had a i*ight to label it and describe it and comment] it and state the manner of its use:” that a mere inspection of the two labels would show that they differ; and that a very conspicuous difference is the portrait of Warren W. Drake on the label of the plaintiffs in error. This contention brings us to the consideration of the application of the doctrine of fraudulent or unfair competition. When a technical trade-mark is imitated that fact itself constitutes a ground for relief. In cases of unfair competition, so called, courts of equity proceed on the ground of preventing fraud upon the public and upon the complainant. Hence “where a label or style of package is imitated, it is necessary to show by evidence an intent to deceive the public and to steal the plaintiff’s market. This intent may be shown by proof of actual deception, but it may be inferred from an examination of the real and spurious labels,” etc. Bouvier Law Die. (Rawle’s ed.), Trade-Mark. In Coats v. Merrick Thread Co., 149 U. S., 562, 566, it was said by Brown, J., that: “Irrespective of the technical question of trade-mark, the defendants have no right to dress their goods up in such manner as to deceive an intending purchaser and induce him to believe he is buying those of the plaintiff.” Positive proof of fraudulent intent is not required if the simulation is clearly shown. Although the differences between the labels or packages may be readily seen on comparison; yet if the infringing device be such that persons exercising ordinary caution’ are liable to be misled into purchasing the article bearing the objectionable device when they intend to purchase the other one, an injunction will be allowed. The* following are some of the cases in which relief has been granted without regard to the question whether a technical trade-mark is infringed or not. Opperman v. Waterman et al., 94 Wis., 583; Pierce v. Guittard et al., 68 Cal., 68; Conrad v. Joseph Uhrig Brewing Co., 8 Mo. App., 277; The American Brewing Co. v. The St. Louis Brewing Co., 47 Mo. App., 14; Filley v. Fassett, 44 Mo., 168; Keller v. The B. F. Goodrich Co., 117 Ind., 556; Boardman et al. v. Meriden Britannia Co., 35 Conn., 402; Foster v. The Blood Balm Co., 77 Ga., 216; Metzler v. Wood, 8 L. R. Ch. Div., 606; Lever v. Goodwin, 36 L. R. Ch. Div., 1; Simmons Medicine Co. v. Mansfield Drug Co., 93 Tenn., 84.

Upon comparing the two labels in this case it is apparent, as contended by the plaintiff in error, that there are marked differences, one of them being the portrait of Dr. Warren W. Drake, there being no portrait on the plaintiff’s label. Nevertheless there is a palpable effort at simulation of the plaintiff’s prior label, and it is so successful that ordinary buyers, if they did not compare the labels, etc., would be likely to accept the medicine of the defendants for that of the plaintiff. The form and size of the packages and the color and general appearance of the labels are so nearly identical .that unless the buyer’s suspicions were aroused, he might readily accept the one for the other and be none the wiser. It is not disputed, and the fact is found by the court below, that the plaintiff’s label was in use long before that of the defendants, and the differences as well as the similarity of the inscription on the labels are of such character as to compel the inference that the label used by the defendants was deliberately made in imitation of that of the plaintiff, and made to deceive.

The typographical devices and distinctions will .appear upon examination of the facsimiles of the labels, contained in the statement of the case; but the verbal differences will appear as follows, the variations from the plaintiff’s label being here made to appear in the defendant’s label by italics. Plaintiff’s label on the front of the package is in the words following: “One Dose Cures. Dr. Drake’s German Croup Remedy. Trade Mark. A Positive Cure.for Croup in its Most Dangerous Forms. Instant Relief for Whooping Cough, Hoarseness, Etc. Price, 35 Cents. Prepared by The Glessner Medicine Co., Findlay, Ohio, U. S. A.” The defendants’ label on front of the package is in the words following: “One Dose Gives 'Belief. Dr. Drake’s Famous. German Croup Remedy. A Sure Cure for Croup in its Most Dangerous Forms. Quick Relief for Whooping Cough and Hoarseness. Price 35 Cents. Prepared by The Drake Medicine Co., Findlay, Ohio, U. S. A. Incorporated.” The defendants’ label also contained after the words “Dr. Drake’s” the portrait of the defendant, Warren W. Drake, with the word “Trade-Mark.”

The plaintiff’s label on the back of the package was in the words following: “The proprietors Authorize Every Dealer To Guarantee The German Croup Remedy To Cure Croup of the most aggravated form, and will refund the money should it ever fail. One Dose Cures in nine out of ten cases, and at the utmost not exceeding two doses are necessary. Relief Is Almost Instantaneous. While prompt in its action, it is so entirely harmless that it will not sicken even a baby. It Has Never Been Known To Fail.” The defendants’ label on the back of the package was in the words following, indicating the variations from plaintiff’s label, as nearly as possible, by italics: "Dr. Drake Guarantees The Famous German Croup Remedy To Cure Croup And Hoarseness In The Most Serious Cases If Directions Are Carefully Followed. It Has Never Been Known To Fail. For Colic And Bowel Trouble There Is No Better Treatment Than Dr. Drake’s Croup Remedy.”

The circuit court after hearing and considering the evidence in the case made the following special finding, viz.: “That in adopting the label and in the manner of formulating their label and trade-mark, the defendants designed as nearly as possible to imitate plaintiff’s trade-mark and label for the fraudulent purpose of deceiving the public, and defrauding the plaintiff as well, by causing it to be believed by the public that defendant’s remedy was that of the plaintiff, intending thereby to profit by the good will of plaintiff’s said business and the fame of his remedy with the trade and general public.” For the reasons stated we find no error in the conclusion of law made by the circuit court upon the facts found .by it, nor in the decree made accordingly.

The second contention of the plaintiff in error, viz.: That the plaintiff below has • so conducted himself toward the public ,and the defendants that he can not be heard to complain of the defendants, has not only no support in the findings of fact made by the circuit court, but the contrary appears.

Judgment affirmed.

Burket, C. J., Spear, Shauck, Price and Crew, J J., concur.