House of Vision, Inc. v. Hiyane

• Citation: 37 Ill.2d 32,225 N.E.2d 21
• Decision Date: 29 March 1967
• Docket Number: No. 39737,39737
• Parties: The HOUSE OF VISION, INC., Appellee, v. William M. HIYANE et al., Appellants.
• Court: Supreme Court of Illinois

Page 21

225 N.E.2d 21

37 Ill.2d 32

The HOUSE OF VISION, INC., Appellee, v. William M. HIYANE et al., Appellants.

No. 39737.

Supreme Court of Illinois.

March 29, 1967.

Leonard Rose, of Mason, Albright, Stansbury & Rose, and Hugh M. Matchett, Chicago, for appellants.

Lawrence J. West, Leo Spira and Stuart West, Chicago, for appellee.

SCHAEFER, Justice.

This is an action to enforce an employee's covenant not to compete with his employer. The plaintiff, The House of Vision, a corporation engaged in selling spectacles, contact lenses and other optical products, employed the defendant, William M. Hiyane, from 1959 to 1964, first as a contact lens grinder and later as a contact lens fitter. Early in 1964 Hiyane resigned and began working for co-defendant Acro Contact Lens Service, Inc., at a location 150 feet from plaintiff's Evanston office. The plaintiff brought the present action to enjoin Hiyane from working for Acro and to enjoin Acro from employing him.

The action is based upon Hiyane's employment contract, by which House of Vision promised to employ Hiyane for one year at a specified rate, and Hiyane promised: '6. Upon the termination of his employment for any cause whatsoever, the Employee shall not engage, directly or indirectly, in the same or similar business as that of the Employer, anywhere within a radius of Thirty (30) miles from any office of the Employer in, or from which, the Employee rendered services at any time during his employment with the Employer.' Hiyane rendered services for the plaintiff in Chicago, Evanston, Highland Park and Waukegan. Highland Park is about 23 miles north of Chicago and Waukegan is about 35.

The case was referred to a master who heard testimony and filed an interim report. Following the master's recommendations, the court entered an order holding the sixth paragraph of the employment contract unenforceable and void because it would be harsh and oppressive to the defendant, injurious to the public and consequently unreasonable. The plaintiff's prayer for an injunction preventing Hiyane from engaging in a business similar to the plaintiff's within thirty miles of plaintiff's Evanston office was denied, as was an injunction forbidding Acro to hire Hiyane. Pending a full hearing by the master, however, Hiyane was enjoined from soliciting patients of customers for whom he had done work while employed by the plaintiff.

Upon the plaintiff's interlocutory appeal, the appellate court reversed and remanded, stating 'The master found--and it was sustained by the court--that the covenant was void. This was apparently based upon the master's conclusion that, although the area restriction in the agreement was reasonable, the absence of a time limitation alone rendered the contract unreasonable and unenforceable. With this latter conclusion we do not agree. When there is no time limit specified in the contract it will not fall simply on that account, as a reasonable time will be inferred or imposed. It is our opinion, therefore, that the enforceability of the covenant by injunction is a matter for determination on a full hearing.' House of Vision v. Hiyane, 58 Ill.App.2d 431, 440--441, 208 N.E.2d 390, 395.

On remand the master heard further evidence and recommended that Hiyane be enjoined from selling, dispensing, or fitting contact lenses or rendering service to wearers within twenty miles of plaintiff's Evanston office for a period of five years, and that Acro be enjoined from employing Hiyane in those capacities in the restricted area recommended by the master, for five years. The trial court entered such an injunction, and allocated the master's fees, in the sum of $3,043.25, one fourth to the plaintiff and three fourths to Hiyane.

On this direct appeal the defendant first argue that the trial court had no authority to refer the case to a master in chancery since fee officers, including masters in chancery, were abolished by section 8 of the new article VI of the Illinois constitution, S.H.A., which became effective before this action was commenced. They also contend that the trial court unconstitutionally impaired the obligation of the contract between the parties when it substituted its own restriction on competition for that agreed to by the parties. And apart from constitutional contentions they urge that the record in this case does not support any restriction competition.

We do not agree with the defendants that section 8 of article VI of the constitution forbade reference of the present case to a master in chancery. The provision of that section that there 'shall be no masters in chancery or other fee officers in the judicial system' must be read in conjunction with paragraph 8 of the Schedule accompanying the new article VI, which states: 'Notwithstanding the provisions of Section 8 of this Article, masters in chancery and referees in office in any court on the Effective Date of this Article shall be continued as masters in chancery or referees, respectively, until the expiration of their terms, and may thereafter by order of court, wherever justice requires, conclude matters in which testimony has been received.' The controversy in the present case turns on the word 'thereafter.' It refers either to the effective date of the Judicial Article, January 1, 1964, or to the expiration date of the term of office of the master. Under the first reading, the reference in the present case was prohibited; under the second it was permitted. Our Rule 14--1 adopted the latter interpretation, (Ill.Rev.Stat.1965, chap. 110, par. 101, 14--1.) and the defendant challenges its constitutionality.

Rule 14--1 did not, as the defendants urge, conflict with the language of paragraph 8 of the Schedule. That paragraph continued masters in chancery in office during the interval between the effective date of the new article and the expiration of their terms of office. To authorize masters, during that interval, to conclude matters in which testimony had been received before the effective date, it was not necessary that they be continued in office. Since they were continued in office, no additional explicit authorization was necessary to enable them to hear cases referred to them during that interval. The defendants' reading would render almost meaningless the clause which grants authority to 'conclude matters in which testimony had been received,' and would convert what is stated as an express grant of authority into an implied limitation. That clause is not surplusage if the word 'thereafter' refers to the expiration of the terms...