Best Dairy Farms, Inc. v. Houchen
| Decision Date | 04 December 1968 |
| Docket Number | No. 11128,11128 |
| Parties | BEST DAIRY FARMS, INC., a corporation, Plaintiff and Appellant, v. Aubrey D. HOUCHEN, Defendant and Respondent. |
| Court | Montana Supreme Court |
Drysdale & Sabo, Douglas R. Drysdale (argued), Bozeman, for plaintiff and appellant.
Anderson, Symmes, Forbes, Peete & Brown, Rockwood Brown, Jr. (argued) Billings, for defendant and respondent.
This is an appeal from a judgment of the thirteenth judicial district rendered October 1965. The case was tried to the court without a jury. The procedural matters are somewhat at issue and reveal an unusual process. However, the procedural matters are only important in one view of the case as we shall develop.
The facts were, in part, submitted on an agreed statement. Best Dairy, appellant here, was engaged in the business of manufacturing, selling and distributing fluid milk and dairy products in Billings. Houchen, respondent here, was an employee of Best Dairy as a driver and solicitor for two and one-half years. Best Dairy had furnished him a vehicle, samples, price lists, etc. Houchen had a route and held certain customers; in January, 1965, he served about three hundred twenty-five customers.
It was further agreed that the names of the customers served by the driver within his area would at all times during his employment by the corporation be contained in a 'route book', and while the driver was employed by the corporation new customers were added through the efforts of both the corporation and the driver, and that upon the termination of the driver's employment he returned the route book to the corporation, keeping no record of the customers for himself.
However, it was agreed that from the deliveries the driver made to the corporation's customers, the driver retained in his memory the knowledge of the names and addresses of the corporation's existing customers within the driver's designated area. It was further agreed that the driver received a weekly salary, a bonus for each new customer procured by the driver for the corporation, plus an additional incentive bonus based upon sales. There had never been any discussion between the corporation and the driver as to solicitation of customers on termination of the driver's employment, nor was there any express agreement in this connection.
The parties further agreed that a week after the termination of his employment with the corporation, driver commenced his own dairy delivery business under driver's own trade name and by his purchase of dairy products under a trade name from another dairy; and that thereupon the driver contacted corporation's existing customers within the designated area and persuaded numbers of them to switch business to the driver and that even though the corporation asked him to desist solicitation of the designated area the driver continued to solicit business from the corporation's customers within the area up to the time of the court's restraining order, acquiring approximately eighty of the corporation's former customers within the designated area.
A brief summary of the agreed statement of facts is that the corporation employed the driver as a route salesman, gave him a list of customers to sell to, paid him for new customers, paid him for his services, and that the driver upon termination of his employment with the corporation utilized the knowledge obtained while employed by the corporation to sell products of another dairy to corporation's customers.
Procedurally, Best Dairy filed a complaint seeking an injunction against Houchen, the driver. A temporary injunction was issued and an order to show cause was made. On motion by Houchen, the temporary injunction or restraining order was modified. The order to show cause came on for hearing at the time set; the hearing was had upon the aforementioned agreed statement of fact and upon evidence introduced at the hearing. At the conclusion of the hearing on the order to show cause, the parties stipulated that both might move for a summary judgment, Best Dairy making its motion as to injunctive relief only, and not as to damages, and Houchen making his motion without restriction.
Thus, Best Dairy was attempting to restrict the trial court to the injunctive relief only. However, as we shall develop, if Best Dairy did not have grounds for injunctive relief, neither did it have grounds for a justiciable issue on damages.
In effect the pleadings plead what might be termed the classical case of the salesman-driver given or developing a list of customers in a designated area, who terminates his employment and transfers as many of the customers to himself as possible. The pleadings also alleged a conspiracy by the salesman-driver with another competitor. It follows, however, that if the driver was free to do what he did, whether he did it by himself or in conjunction with others would not give rise to damages.
The trial court made findings of fact and conclusions of law and entered judgment thereon. This, even though motions for summary...
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