Johnson Wholesale Perfume Co., Inc. v. Blumen
| Decision Date | 08 December 1939 |
| Docket Number | No. 1464.,1464. |
| Citation | 9 A.2d 857 |
| Parties | JOHNSON WHOLESALE PERFUME CO., Inc. v. BLUMEN. |
| Court | Rhode Island Supreme Court |
Appeal from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.
Bill in equity by the Johnson Wholesale Perfume Company, Inc., against Leo E. Blumen for an injunction to restrain respondent from working in a stare selling line of products similar to those of complainant within 18 months after termination of respondent's employment with complainant in violation of employment agreement. From decree granting injunction, the respondent appeals. On motion to dismiss appeal.
Appeal dismissed, and cause remanded to the superior court.
Perkins, Higgins & McCabe and James A. Higgins, all of Providence, for complainant.
McKiernan, McElroy & Going, Peter W. McKiernan, and John C. Going, all of Providence, for respondent.
This is a bill in equity for an injunction. It was heard in the superior court on bill, answer, replication and proof, and a decree was duly entered as prayed for by the complainant. From this decree, entered January 30, 1939, the respondent has appealed to this court. He filed his claim of appeal in the superior court on January 31, 1939. On April 24, 1939, he moved in this court to assign the appeal for hearing. On May 1, 1939, on this motion, the appeal was assigned for hearing to October 2, 1939.
On September 12, 1939, the complainant moved in this court to dismiss respondent's appeal, on the ground that it presented "only a moot or academic question, the determination of which is not necessary at this time." On October 2, 1939, this motion was heard at the request of both parties, and the consideration of the appeal was continued to await the ruling on the motion. The parties were granted permission to file written briefs on certain questions brought out on oral argument, and these briefs were filed in this court on October 23 and 25, 1939.
The complainant is the owner of a so-called "cut rate drug store", in the city of Providence. On January 11, 1937, it entered into an employment agreement in writing with the respondent, whereby the respondent was hired at a stipulated weekly wage to work in its store and whereby respondent agreed that "on the termination of his employment irrespective of the manner, time and cause of the termination of said employment," he would not in any manner, directly or indirectly, for a period of eighteen months from the time of the termination of his employment with the complainant, become interested in or work in a store selling a line of products similar to those of the complainant.
On February 1, 1938, the complainant terminated the employment of the respondent. Shortly thereafter the respondent entered the employ of "Carroll Cut Rate Perfumer" in a store in the city of Providence. This store was admittedly similar to the complainant's store in the character of its merchandise and its merchandising methods.
On July 11, 1938, the complainant brought its bill of complaint in the superior court, in which it alleged, in substance, that the respondent was violating the terms of his agreement with it by taking employment at the Carroll store. After a hearing on the bill and respondent's answer, the superior court granted the relief prayed for by the complainant and entered its decree, enjoining the respondent for a period of eighteen months from and after February 1, 1938, from engaging or being employed in the business of so-called "Cut rate drug stores" in Providence and other cities where the complainant operated stores on February 1, 1938.
The decree further ordered that, in the event that the respondent claimed and perfected an appeal to this court, this injunction was to remain in full force pending such appeal. The respondent remained under this injunction throughout its full period, until it expired on August 1, 1939. He made no request to this court upon the entry of his appeal here for a modification or an annulment of this order, as is permitted under the provisions of general laws 1938, chapter 544, § 1; neither did he ask the superior court to require complainant, pending the appeal, to give security for damages which respondent might suffer if the decree granting an injunction were later held erroneous by this court.
On this motion to dismiss respondent's appeal, we are not concerned with the merits of the cause. Whether the contract of employment was a valid one or whether, by its terms, it was void as against public policy or because it violated the constitutional rights of the respondent to earn a livelihood, we do not inquire. The motion raises only one issue: Is there under the circumstances of this case a justiciable question now pending which entitled the respondent to have his appeal heard and determined? We think there is not.
That the respondent is aggrieved by the action of the superior court is not alone sufficient to entitle him to a review of that court's action. There must be an existing right in controversy between him and the complainant upon which the judgment of this court, on the appeal, will operate. "To have any force" the appeal "must carry to the court of review a justiciable question, upon which an effective determination may be made." Greene v. Willis, 47 R.I. 251, 132 A. 545, 547. Whether or not the respondent should have been enjoined from following his occupation was no longer a justiciable question in the instant cause after August 1, 1939. It then became a purely academic one. Thereafter the respondent was no longer deprived of his right to work at his usual employment and the complainant no longer had a right to urge that the respondent be enjoined from such employment under his contract.
Clearly in such a case an appeal should be dismissed. Johnson-Kennedy Radio Corp. v. Chicago Bears F. Club, 7 Cir., 97 F.2d 223. This is the general view and there would seem to be no contrary one. 4 C.J.S. Appeal and Error, 1951, § 1354c. However, there are certain exceptions to this view, and the question arose on the argument in the instant cause whether or not it would fall within one of the well-recognized exceptions by reason of the facts that this respondent had, by force of the superior court's injunction, long been deprived of the right to...
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