Atlas Travel Service, Inc. v. Morelly, A-75

• Decision Date: 06 December 1957
• Docket Number: No. A-75,A-75
• Citation: 98 So.2d 816
• Parties: ATLAS TRAVEL SERVICE, Inc., a Florida corporation, Appellant, v. Frank J. MORELLY, Appellee.
• Court: Florida District Court of Appeals

Page 816

98 So.2d 816

ATLAS TRAVEL SERVICE, Inc., a Florida corporation, Appellant, v. Frank J. MORELLY, Appellee.

No. A-75.

District Court of Appeal of Florida, First District.

Dec. 6, 1957.

Rehearing Denied Dec. 31, 1957.

Cobb & Cole, Daytona Beach, and Gregory, Cours & Paniello, Tampa, for appellant.

Adams & Judge and W. Cecil Grant, Daytona Beach, for appellee.

STURGIS, Chief Judge.

In July of 1952 the appellant, Atlas Travel Service, Inc., operator of a state-wide travel service and automobile rental agency, orally hired appellee on a month-to-month basis as manager of its Daytona Beach office. This arrangement continued until June 30, 1955 when, after extensive negotiations that did not interrupt the continuity of employment, they entered into a written employment contract whereby (1) each reserved the independent right to terminate the employment upon fourteen days notice, (2) appellee received an increase in salary and retained his position as manager, ¹ and (3) appellee agreed that he would not, for a period of two years after termination of his employment, engage directly or indirectly in any business conducted in the city of Daytona Beach that was competitive with the business in which he was employed, and in the event of breach of that provision to pay appellant $2,000 as agreed liquidated damages.

Within a short time after executing the contract appellee engaged upon a course of conduct clearly indicating disloyalty to his employer and an intention not to abide by the agreement. Among other things, he sought to persuade two of his fellow employees, the remaining personnel of the Daytona Beach office, to quit their employment and engage with him at Daytona Beach in a business competitive to appellant. We recite these facts for their moral rather than legal aspects. On October 26, 1956, appellant gave notice of and terminated the employment, which he had the right to do under the contract, assuming its validity, with or without cause.

Within the prohibited two-year period appellee became associated with a competing business located in the same block with that of appellant, whereupon appellant sued to enjoin further breach and to enforce the provision of the contract relating to liquidated damages. Upon the issues made by appellee's answer, the appellant presented its proofs and the appellee elected to present none in his behalf. Appellant's uncontradicted testimony duly established the material allegations of his complaint. The appellant-employer appeals from the final decree which denied the injunctive relief and dismissed the cause; the decree specifically reciting that it was bottomed on the authority of Love v. Miami Laundry Co., 118 Fla. 137, 160 So. 32, decided May 5, 1934, in which our supreme court set aside a decree enjoining an employee from engaging in employment contrary to the terms of the contract.

The character of the employment and relation of the parties in Love v. Miami Laundry Co., supra, are not analogous to the case on appeal; but the controlling factor distinguishing that case is that it was decided according to the common law governing contracts executed prior to the enactment of Chapter 28048, Laws of Florida, Acts of 1953 (F.S. § 542.12, F.S.A.), whereas the case on appeal involves a contract executed after the enactment and is governed by the statute which provides, inter alia, that

'* * * one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area * * * so long as such employer continues to...