A. & M. Pest Control Service, Inc. v. LaBurre

• Decision Date: 18 January 1965
• Docket Number: No. 47350,47350
• Citation: 170 So.2d 855,247 La. 315
• Parties: A. & M. PEST CONTROL SERVICE, INC. v. Nelson LaBURRE.
• Court: Louisiana Supreme Court

Page 855

170 So.2d 855

247 La. 315

A. & M. PEST CONTROL SERVICE, INC. v. Nelson LaBURRE.

No. 47350.

Supreme Court of Louisiana.

Jan. 18, 1965.

Albert B. Koorie, New Orlenas, for defendant-appellant.

Baldwin, Haspel, Molony, Rainold & Meyer, Conrad Meyer III, Jerry C. Paradis, New Orleans, for plaintiff-appellee.

SUMMERS, Justice.

This suit for an injunction was brought by A. & M. Pest Control Service, Inc. against one of its former employees, Nelson LaBurre, seeking to prohibit him from violating the conditions of an employment contract in which he agreed that upon termination of his employment he would not solicit customers serviced by him while in plaintiff's employ. LaBurre filed an exception contending that the contract which plaintiff sought to enforce was repugnant to LSA-R.S. 40:1270, subd. B and as such contrary to public policy. That section prohibits contracts, between the pest control operator and its employees, which have the effect of restraining competition. Upon the trial of the rule for a preliminary injunction, the trial court agreed with this contention and denied injunctive relief. However, upon application for a new trial on that rule plaintiff contended that LSA-R.S. 40:1270, subd. B was unconstitutional because its body was broader than its title, contrary to Article III, Section 16 of the Louisiana Constitution of 1921, LSA. A special plea was filed to this effect. The application was granted and the trial court then declared LSA-R.S. 40:1270 subd. B unconstitutional and granted the preliminary injunction. This appeal followed.

Defendant LaBurre was employed by plaintiff as a route or service man. On January 24, 1963, plaintiff and the defendant employee executed an agreement which provided that the employee LaBurre would at no time during the term of his employment, or for a period of two years immediately following the termination of his employment, whether voluntary or involuntary, either for himself or for others, call upon any customer of his employer, solicited or contacted by the employee or whose account was serviced by the employee during his employment with plaintiff, for the purpose of soliciting, or selling any pest control service for the eradication or control of rats, mice, roaches, bugs, vermin, etc., further agreeing not to take away any business, or patronage of any such customer.

LaBurre voluntarily terminated his employment with plaintiff on December 31, 1963. He then became employed by a competitor in the pest control business and immediately solicited the business of persons whom he formerly served while employed with plaintiff, some of whom gave him their business, all in direct violation of his agreement with plaintiff. This provoked plaintiff's suit on January 6, 1964, in which it sought an injunction to prohibit the continued violation of the contract, reserving its right to recover damages.

If we would avoid the constitutional issue presented it is necessary that we find that the employment contract is not contrary to LSA-R.S. 40:1270, subd. B as written. Such a finding would relieve us of the necessity of determining the constitutionality of LSA-R.S. 40:1270, subd. B, for that enactment, under these circumstances, would have no application to this litigation. But we cannot resolve this controversy on that basis because LSA-R.S. 40:1270, subd. B does prohibit the contract entered into by plaintiff and defendant when it declares: 'No licensed pest control operator shall require any of his employees to execute any written employment contract stipulating, or to bind said employee in any way to, a negative covenant which would prohibit or restrain the employee from engaging in similar work with any other operator upon said employee's resignation or discharge * * *.'

However, plaintiff, relying upon the legal principle--which we recognize--that a statute which limits or restrains freedom of contract must be strictly construed, argues that the employee has only agreed in the contract not to solicit or sell services to the customers whom he serviced or had contacted pursuant to his employment with plaintiff. Thus it is contended, when plaintiff seeks to restrain him from doing this, it does not seek to 'prohibit or restrain the employee from engaging in similar work with any other operator' but only seeks to restrain the soliciting, etc., of plaintiff's customers. Therefore, neither the conditions of the contract nor the relief sought is contrary to LSA-R.S. 40:1270, subd. B, because the employee can still work with another operator so long as he does not solicit or take away plaintiff's customers.

We cannot agree with this contention. Although the contractual prohibition may be limited to certain customers of the plaintiff, it none the less does contain a negative covenant which prohibits or restrains the employee insofar as plaintiff's customers are concerned from engaging in similar work with another operator. The section (LSA-R.S. 40:1270, subd. B) does not require that the restraint be all encompassing. It is sufficient that the restraint is agreed upon and that it does limit the competitive activities of the employee.

Having reached this result we have presented squarely for decision the contention that LSA-R.S. 40:1270, subd. B is violative of Article III, Section 16 of the constitution in that its title is not indicative of its object.

At the time of the adoption of the Revised Statutes of 1950, LSA-R.S. 40:1270, subd. B, originally enacted as Act 124 of 1942, read as follows:

'LSA-R.S. 40:1270 Reporting termite control contracts

'Every licensed pest control operator shall report to the commission, within ten days after the end of each month, each termite control contract which he has entered into and performed during the month immediately preceding.'

By Act 312 of 1958, the legislature amended the above section of the revised statute. The title of the 1958 Act read: 'An Act to amend and re-enact Section 1270 Title 40 of the Louisiana Revised Statutes of 1950, relative to reporting termite control contracts.' The above-quoted language of LSA-R.S. 40:1270 was by that amendment lettered 'A' and a new paragraph lettered 'B' was added providing:

'No licensed pest control operator shall require any of his employees to execute any written employment contract containing, or to bind said employee in any way to, a negative covenant which would prohibit or restrain said employee from engaging in similar work with any other operator upon said employee's resignation or discharge from his job with the said employer operator, nor shall said employer operator by contract or otherwise prevent said employee upon securing a pest control operator's license of his own from...