Charles Reilly Optical Co. v. Burke, 21476.

• Decision Date: 08 September 1931
• Docket Number: No. 21476.,21476.
• Citation: 41 S.W.2d 909
• Parties: CHARLES REILLY OPTICAL CO. v. BURKE.
• Court: Missouri Court of Appeals

41 S.W.2d 909

CHARLES REILLY OPTICAL CO. v. BURKE.

No. 21476.

St. Louis Court of Appeals. Missouri.

September 8, 1931.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Suit by the Charles Reilly Optical Company against Edward A. Burke. Judgment for defendant, and plaintiff appeals.

Reversed and remanded, with direction to enter judgment for plaintiff.

Parker, Jackson & Grossenheider and Charles E. Morrow, all of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

NIPPER, J.

This suit originated by plaintiff filing a petition in equity to enjoin and restrain defendant, Edward A. Burke, from disclosing, using, soliciting, circularizing, or canvassing the names of its customers to obtain their patronage, and to compel defendant to surrender and deliver to plaintiff a list of its customers which defendant copied from the secret and confidential records of plaintiff.

The lower court denied plaintiff's plea for an injunction, and it has appealed.

The evidence discloses that the Charles Reilly Optical Company has been in business in the city of St. Louis continuously since 1892; that since 1911 it has operated as a corporation, and that during all said times it was engaged in the business of testing and examining eyes of patrons and customers, and prescribing and furnishing glasses to them; that plaintiff had built up a very lucrative business, and kept a confidential record of its dealings with each customer or patron; that said record consisted of the name and address of such customer, the history and the particular kind of lenses and frames required by him. These records were filed alphabetically, and were of great value to any one in the optical business, and especially to plaintiff. The records were kept in steel cabinets, under lock and key, in a combination iron safe. When it was necessary to make reference to such records for the purpose of replacing a pair of glasses, the salesman waiting upon such customer could get such records through the file clerk or cashier, who kept the key, and knew the combination of the safe. These records had been compiled and accumulated over a long period of time.

The evidence also discloses that the plaintiff keeps in touch with its customers by mailing them circular letters, and advising them the date of their last call, and suggesting that they call at stated intervals for the adjustment of their glasses.

It was also shown that plaintiff had expended over $100,000 for advertising during its existence.

The defendant entered the employ of plaintiff in the year of 1908, at the age of fourteen years, as an errand boy, and during the period of his employment he learned the optical business, and obtained a license to practice optometry. When he had been in plaintiff's employ for about ten years, he was sent by plaintiff to a school of optometry, where plaintiff paid his tuition and salary while he was in school. Defendant was a trusted employee, and testified that he was manager for plaintiff, although plaintiff denied this fact.

In October, 1927, Charles Reilly, president and chief owner of the plaintiff company, went to Europe and remained about fourteen months. While there he made a medical and surgical study of the eye, and took post graduate work at schools in Vienna and Berlin. Upon his return to St. Louis, he had occasion to refer to certain of his records, and in November, 1928, discovered that some of them had been removed from the steel cabinet. In January, 1929, it was discovered that the records for several months of the year 1928 had been removed from the cabinet. A day or two later, it was discovered that said records had been returned to their accustomed place. Defendant was suspected of removing the records, and Dr. Reilly later accused him of the same.

Dr. Reilly testified that on a Saturday night in September, 1929, he was talking to defendant, and told him that he had been taking out his records. Defendant denied that he had. But later in the same conversation, defendant admitted that he had taken the records, and that they were at his home. The next morning defendant brought the records in, and opened up the package. Defendant then told Dr. Reilly that he had taken the records because he intended to go into business for himself. Some of the copies, according to Dr. Reilly's testimony, were not returned. All the books were returned, but the copies of only four months came back, according to Dr. Reilly's testimony, and there were three months to be accounted for. Dr. Reilly testified that defendant told him that he had copied the records during the time he was in the store. The copies which were returned were correct copies of the originals, and in defendant's handwriting.

Defendant testified that he at one time took some records away from the office and brought them back the next day. He denied having a copy of anything that he did not bring back. Defendant testified that he had spent twenty-one years with plaintiff, and was to be put out of the place and did not have anything to show for it; that if he went to work for somebody, or if he started for himself, he had nothing to start on, and he knew that men had been hired, and only hired, because they had a following and brought in records, and that would be the same thing for him.

Defendant testified that after the...