American Fire Protection Service v. Williams
| Decision Date | 17 June 1959 |
| Docket Number | No. 18128,18128 |
| Citation | 171 Cal.App.2d 397,340 P.2d 644 |
| Court | California Court of Appeals Court of Appeals |
| Parties | AMERICAN FIRE PROTECTION SERVICE, Plaintiff and Appellant, v. Bernard J. WILLIAMS, George R. Stephens and Food Products, Inc., Defendants and Respondents. |
Irvin Goldstein, San Francisco, for appellant.
Joseph Genser, Richmond, Thomas Pierce Rogers, San Francisco, for respondents.
This is a suit to recover damages brought by the plaintiff, American Fire Protection Service, against the defendant Williams, and others who, it is alleged, aided and abetted him in violating a permanent injunction which restrained Williams from engaging in the flue cleaning business in certain counties of California in competition with the plaintiff and from soliciting the business of persons and corporations who were customers of the plaintiff on and prior to January 2, 1953.
The salient fact which needs to be mentioned here as a preliminary to all of the facts is that Williams prior to June 9, 1950, was engaged, with a partner, in the flue cleaning business. The partnership sold its business on that date to the plaintiff and, by the terms of the sale, each partner agreed that he would not engage in the type of business sold in any of the northern California counties specified and that neither would solicit any of his customers in those counties. Upon the sale of the business the defendant Williams was employed by the plaintiff at a stated salary as an employee and continued to be so employed until January 2, 1953, at which time he left the employ of plaintiff and engaged in a competing business under the name of the A-1 Fire Protection Service. As a consequence of Williams' action the plaintiff instituted a suit to procure an injunction against him. The court in that case, on March 9, 1954, granted a permanent injunction which, by its terms, restrained Williams and A-1 Fire Protection Service from directly or indirectly soliciting or inducing any customer (in the counties named), who became such customer prior to January 2, 1953, to quit the service of the plaintiffs, and further restraining them from carrying on the flue business and kindred services of the character which had been sold to plaintiff.
On May 7, 1954, Williams sold A-1 Fire Protection Service to Food Products, Inc., one of the companies under which name defendant Stephens operated. At that time and prior thereto, Stephens, the president of the defendant company, had read and was familiar with the terms of the injunction referred to above. Williams was nevertheless hired by defendant at a salary of $575 a month. His duties included solicitation of business, the making of estimates, sales, computation of prices, office work, road work, preparation of job records and schedules, and supervision of other employees. Williams solicited some business, but most of the time Stephens accompanied him. He made some surveys and estimates for the purpose of submitting bids, but the submission of the final bid was only made after consultation with Stephens. With regard to the office work Williams merely typed job sheets in the San Francisco office whereas the billing was handled from the Richmond office. Williams was not really the manager of the San Francisco office as Stephens spent two days a week at that office and the rest of the time at the Richmond office.
On February 9, 1955, plaintiff in the superior court at San Francisco, instituted contempt proceedings for the violation of the injunction against Williams, Stephens, and Food Products, Inc., and all the parties just named were found in contempt by the court.
Thereafter on January 3, 1956, plaintiff filed the instant civil action in the Superior Court of San Mateo County.
In its complaint in this case for damages the plaintiff averred that the injunction that was issued in its favor on March 4, 1954, restrained the defendant Williams not only from engaging in the flue type of business in which plaintiff was engaged, but also restrained Williams from directly or indirectly soliciting or inducing any customer (in the counties named) who became such customers prior to January 2, 1953, to quit the service of the plaintiffs. The complaint then went on to aver that not only had Williams violated the various terms of the injunction but that he was aided and abetted in so doing by the other defendants. The complaint set forth four specific instances of soliciting and inducing customers to quit the services of the plaintiff, to wit: (1) the Uncle H. Bakery, (2) the Emporium, (3) the Continuation High School, and (4) St. Mary's College.
Turning now to these four 'accounts' on which appellant relies as having been solicited contrary to the terms of the injunction we find from the record that the Uncle H. Bakery 'account' and the Emporium 'account' were both solicited and procured by Stephens when he was accompanied by Williams. Stephens, however, testified that Williams accompanied him to the bakery and the Emporium merely to deliver letters to them stating he could no longer fulfill his obligations under any contracts with regard to the flue cleaning business because he had been restrained from engaging in that business.
Much evidence was elicited with regard to the fact that Williams had made surveys on both the Continuation High School in San Francisco and St. Mary's College in Moraga for the purpose of preparing a bid to submit to these institutions. This evidence was irrelevant with respect to the solicitation charge, because as plaintiff's president admitted, these two institutions were never accounts of plaintiff, much less being accounts as of January 1953. Plaintiff's president contended, however, that he construed Williams' action in making the surveys as 'engaging in business' of flue cleaning. However, it would not seem that making a survey for an employer in preparation for a bid, so that the employer could make a bid, would amount to 'engaging in business' as a matter of law.
At the trial of the action, which is here for review, the trial court proceeded on the theory that the record made on the contempt citation not only was inadmissible in this civil action for damages, but that it could not be treated as an estoppel, or collateral estoppel, or conclusive adjudication upon the issue whether or not the respondents had violated the injunction. We agree with that view. The well-established rule which makes inadmissible a conviction of a criminal offense as proof of the facts upon which the conviction was based is the rule which must be applied here. As was said in Balestreiri v. Arques, 49 Cal.App.2d 664,...
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