Miller v. Frankfort Bottle Gas, Inc.

Decision Date01 December 1964
Docket NumberNo. 19940,No. 1,19940,1
Citation202 N.E.2d 395,136 Ind.App. 456
PartiesBertie C. MILLER, Appellant, v. FRANKFORT BOTTLE GAS, INC., Appellee
CourtIndiana Appellate Court

[136 INDAPP 457]

Stewart & Richardson, Lebanon, and Robison & Robison, Frankfort, for appellant.

Harker, Irwin, Campbell & Hardesty, Frankfort, for appellee.

COOPER, Judge.

This cause is an appeal from a proceeding in equity, for injunctive relief seeking to restrain the appellant from engaging in activities alleged to be in competition with the appellee in Clinton County.

It appears from the record that appellant Miller is a former employee of the appellee, Frankfort Bottle [136 INDAPP 458] Gas, Inc., a corporation engaged in the installation of bottle propane gas tanks, heating equipment, tanks for dryers, the hauling of bulk ammonia, servicing of stoves and water heaters, and the sale and delivery of bottle and bulk propane gas.

A concise statement of the pertinent evidence reveals that the appellant became employed by the appellee prior to October, 1957. On October 15, 1957, the parties entered into a written contract which reads as follows, (omitting caption and signature thereof):

'In consideration of training on bulk bottle gas, and in cylinder bottle gas, and in consideration of training and accesses to customer routes by Frankfort Bottle Gas, Inc., I, Bert Miller, do hereby agree not to compete in anyway which will damage the interests of Frankfort Bottle Gas, Inc., for a period of five (5) years. And I, Bert Miller, do further agree not to compete with Frankfort Bottle Gas, Inc. within the boundaries of Clinton County for the same period of five (5) years from the termination of employment with Frankfort Bottle Gas, Inc.'

Prior to the execution of the above contract, the evidence also shows that the appellant, as an employee, was being trained by the appellee in the proper operation of a bulk tank delivery truck preparatory to assigning appellant to a delivery route. The training consisted primarily of safety procedures which appellant learned in about a week's time. Thereupon, the appellant began making deliveries to all the firm's regular customers, which numbered around one hundred and fifty.

In February, 1961, the appellant severed his employment with appellee and went to work for another bulk gas firm in the adjoining county (Tippecanoe), and subsequently began calling on his former customers within Clinton County, although it is uncertain whether any [136 INDAPP 459] customers severed business relations with the appellee due to the appellant's solicitation. It was this activity which the appellee sought to enjoin, and which was temporarily enjoined by the Clinton Circuit Court on April 28, 1961. On May 19, 1961, the cause was venued to Boone County. Thereafter, the Boone Circuit Court issued a permanent injunction in favor of the appellee against the appellant. The pertinent part of the injunction entered by the court reads as follows:

'* * * that the defendant, Bertie C. Miller, be and is hereby enjoined and prohibited from direct or indirect solicitation of, or sales to customers or purchasers of bulk bottle gas and/or servicing in connection with purchase of bulk bottle gas in Clinton County, Indiana, and/or from becoming employed by or associated with a business which sells or services bulk bottle gas in competition with plaintiff, Frankfort Bottle Gas, Inc., in Clinton County, Indiana, excepting only such association as would limit the defendant's services to such a competing business to and within areas outside of Clinton County, Indiana, but in any event no longer than February 15, 1966. * * *'

Appellant's motion for a new trial averring the insufficiency of the evidence and that the decision is contrary to law was overruled. The appellant appealed to this court, assigning as error the ruling on the motion for new trial.

It is the contention of the appellant that the foregoing contract is so ambiguous that it is not enforceable by injunction; that the restriction is such as to make the contract hard and oppressive and therefore unreasonable and unenforceable in a court of equity; that there is no legitimate interest of the appellee to protect, and the restraint sought is unreasonable and against public policy. As we interpret the questioned contract, the appellant, in consideration of training and access [136 INDAPP 460] to the customer routes of the appellee, Frankfort Bottle Gas, Inc., covenants that he will not, for a period of five years, compete with the appellee within the boundaries of Clinton County upon the termination of employment with said Frankfort Bottle Gas, Inc.

It is fundamental that one who executes a contract of a certain character is bound by its terms even though he meant something different and thought the words conveyed his meaning. A court must give effect to the meaning and intent of the parties as expressed in the language of their contract. This we are of the opinion the trial court correctly did by his language in the injunction. In absence of anything to show legal impediment to prevent their entering into any contract they see fit or expressing it in the language of their own choice, the rights of the parties must be determined according to the contract. The sole duty of a trial court in a proceeding, such as before us, is to determine what is meant by the language of the instrument. In other words, the object to be attained...

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26 cases
  • Harvest Ins. Agency, Inc. v. Inter-Ocean Ins. Co., INTER-OCEAN
    • United States
    • Indiana Appellate Court
    • 22 Mayo 1985
    ...publications and that its agents, not Inter-Ocean's, contacted the clients. In contrast to the facts in Miller v. Frankfort Bottle Gas, Inc. (1964), 136 Ind.App. 456, 202 N.E.2d 395, where the covenantee's customers were oftimes retained on the basis of the personality of the deliveryman on......
  • Norlund v. Faust
    • United States
    • Indiana Appellate Court
    • 4 Febrero 1997
    ...limits on the restraint. See Id.; Licocci v. Cardinal Associates, Inc. (1983) Ind., 445 N.E.2d 556; Miller v. Frankfort Bottle Gas, Inc. (1964) 136 Ind.App. 456, 202 N.E.2d 395. As earlier noted, covenants not to compete are in restraint of trade and generally disfavored See Harvest, supra,......
  • Standard Register Co. v. Cleaver
    • United States
    • U.S. District Court — Northern District of Indiana
    • 14 Octubre 1998
    ...good will, irrespective of whether or not the employee had access to confidential information."); Miller v. Frankfort Bottle Gas, Inc., 136 Ind.App. 456, 202 N.E.2d 395, 398 (1964). Here, though it has not been shown that Cleaver retained truly confidential information upon leaving Standard......
  • Boswell v. Lyon
    • United States
    • Indiana Appellate Court
    • 24 Marzo 1980
    ...District v. Cloverleaf Farms, Inc. (1977), Ind.App., 359 N.E.2d 546,rehearing denied 360 N.E.2d 1039; Miller v. Frankfort Bottled Gas, Inc. (1964), 136 Ind.App. 456, 202 N.E.2d 395. A liberal or technical construction should not be given to an isolated clause thereby defeating the true mean......
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2 books & journal articles
  • Indiana. Practice Text
    • United States
    • ABA Antitrust Library State Antitrust Practice and Statutes (FIFTH). Volume I
    • 9 Diciembre 2014
    ...(Ind. Ct. App. 1989); Field v. Alexander & Alexander, Inc., 503 N.E.2d 627 (Ind. Ct. App. 1987); Miller v. Frankfort Bottle Gas, Inc., 202 N.E.2d 395, 398-99 (Ind. App. 1964); see also Barnes Group v. O’Brien, 591 F. Supp. 454, 460 (N.D. Ind. 1984); cf. Donahue v. Permacel Tape Corp., 127 N......
  • Indiana
    • United States
    • ABA Archive Editions Library State Antitrust Practice and Statutes. Fourth Edition Volume I
    • 1 Enero 2009
    ...(Ind. Ct. App. 1989); Field v. Alexander & Alexander, Inc., 503 N.E.2d 627 (Ind. Ct. App. 1987); Miller v. Frankfort Bottle Gas, Inc., 202 N.E.2d 395, 398-99 (Ind. App. 1964); Indiana 17-8 4. Group Boycotts 4.a. Concerted Refusals to Deal In addition to the general restraint of trade prohib......

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