(dissenting) :
With due deference, I dissent from the Court's decision. The decision is of prime importance, because it in effect invalidates contractual arrangements which ten millions of persons have found convenient and desirable. Adopting Churchillian language it might be said of this decision that never have so many persons had their arrangements nullified by so few.
The Court concludes that when the Association promises its member that if he finds himself in need of having his automobile towed, the towing, if requested by the member, will be done free of charge to the member by a competent operator of a tow truck with whom the Association has made a contract that *1248such service will be furnished to the member and paid for by the Association. The price which the Association, in its contract with the towing contractor, agrees to pay him for the service, is not as large as the price which a tow-truck operator would charge a person who, without any Association or other prepayment arrangement, happened to employ the tow truck operator for towing service. In selecting competent repair garages which are willing to contract with the Association for towing service for less than normal charges, the Association as an inducement to an operator of a repair garage to agree to furnish towing service to Association members, at less than the usual going rates for towing, points out to the garage operator that if the automobile which he tows for a member will need repair work after it is towed, that repair garage operator will have a substantial likelihood of being employed by the owner of the automobile to do the repair work at normally profitable prices. That likelihood will be the natural result of his having become acquainted with the automobilist who was in trouble, of having made an impression on him that the tower is a competent and considerate operator, and frequently by having towed the automobile to the general area of the tower’s repair garage. The repair garage which is one of those which the Association has selected and contracted with for towing service thus has a potential advantage, which at least occasionally results in an actual advantage, with regard to the profitable repair work, over other repair garages which do not have contracts with the Association for furnishing towing service to Association members. It is this tendency toward monopolizing the repair work which the appellant asserts is a violation of the Sherman Anti-trust Act.
As stated at the beginning of this opinion the A.A.A. has ten million members. The record does not, I think, show how many repair garages have contracted with the A.A.A. to supply towing services to A.A.A. members. But there must be at least thousands of them. The A.A.A. argues that the only reason for limiting the number of contract stations and their towing territories is to insure prompt and efficient towing service to their members and to make the Emergency Road Service administratively manageable. In effect, the A.A.A. argues that if it cannot carry on its activities in the way it is now doing, it cannot carry them on at all. Therein, it seems to me, lies the real issue in this case. The appellant does not meet that issue. It merely urges that, whatever the necessity may be, it cannot be met “in a manner to unreasonably restrain trade”. So stated, the argument slurs over the word “unreasonably” as if it were not present in the formulation of the question.
The opinion of the Court does not meet the issue. It seeks to soften the blow to the expectations and reliances of those ten million members of the A.A.A. by saying “The contractual arrangement is not per se or prima facie illegal (emphasis in original). It remains for Anderson to prove his case, and it is for the trial court in the first instance to say whether he has or not”. All that is accomplished by the quoted language and the rather long discussion which precedes it is to keep the case pending.
There is no real factual dispute in this case. The facts are that the practice and system of the A.A.A. does have a substantial tendency to create a monopoly of the automobile repair business, in the repair garages which having towing contracts with the A.A.A. The circumstances are shown in the record of the trial court, or are so generally known that the Trial Court knew them and this Court knows them. There is no evidence or even suggestion that there is any other practicable method of carrying on a prepaid insurance towing system except the method now before this court and which was before the Trial Court.
Before the Trial Court closed the case by issuing its summary judgment, it extended to both parties full opportunity *1249for further discovery and the presentation of additional evidence, but nothing further was presented. Now this Court has remanded the case to the Trial Court. If no further relevant evidence is presented, the Trial Court will be in the same situation that it was in before it granted the summary judgment in favor of the A.A.A. The question for it will be what should the judgment be, on the basis of this uncontroverted evidence and the judicial knowledge which we have. The Trial Court will be aware, as it was the first time, that the attack is upon the entire system of prepaid towing service, used and depended on by 10 millions of automobilists, and that the A.A.A. and any other association using a comparable system, and their thousands of contract garages will be vulnerable to law suits; that the inevitable result will be the destruction of the system. The Trial Court will be aware that this Court has said in this case that the A.A.A. arrangement “is not per se or prima facie illegal”, that it will take a law suit in each case to determine whether it is illegal in that case, but that the law suits and appeals from them will still drive the prepaid towing arrangement out of business.
The Trial Court will be aware that the Sherman Act, as interpreted by the Supreme Court, proscribes only unreasonable restraints upon competition. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 53 L.Ed. 619 (1911); United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). The Court might well conclude, as I would, that a prepaid towing charge system which has been operating for decades, to the satisfaction of many millions of automobilists and has never even been attacked as illegal, is not an unreasonable restraint of competition.
As for me, the weighty admonition of Chief Judge Cardozo in Coler v. Corn Exchange Bank, 250 N.Y. 136, 164 N.E. 882 (1928), “Not lightly [to be] vacated is the verdict of quiescent years” would be persuasive. For decades, the system has been used, the statute has not been amended, the prosecuting authorities have been inactive and have been under no pressure to act. I think this Court should not become responsible for such really devastating destruction.
I would affirm the judgment.
Honorable J. Warren Madden, Senior Judge, United States Court of Claims, sitting by designation.