Paraco, Inc. v. Owens

• Decision Date: 06 January 1959
• Citation: 333 P.2d 360,166 Cal.App.2d 777
• Court: California Court of Appeals Court of Appeals
• Parties: PARACO, INC., a corporation, Plaintiff and Appellant, v. John Carl OWENS, Defendant and Respondent. Civ. 9359.

Page 360

333 P.2d 360

166 Cal.App.2d 777

PARACO, INC., a corporation, Plaintiff and Appellant, v. John Carl OWENS, Defendant and Respondent.

Civ. 9359.

District Court of Appeal, Third District, California.

Jan. 6, 1959.

Rehearing Denied Jan. 29, 1959.

Hearing Denied March 4, 1959.

Rowell, Lamberson & Thomas, Breckinridge Thomas, Fresno, for appellant.

Rowland & Paras, Darrel E. Pierce, Sacramento, for respondent.

VAN DYKE, Presiding Justice.

Action to restrain unfair competition. From a judgment denying relief plaintiff appeals.

Appellant is a corporation engaged in the business of collecting used lubricating oils, hereinafter referred to as drain oil, from service stations and garages throughout the State of California. For collection purposes appellant divides the state into several areas, one of which is from Lodi to Yreka and from the Coast Range Mountains to Reno, Nevada. Respondent was an employee of appellant, whose duties as such for several years were those of a tank truck driver picking up drain oil in the described area. After collection the oil was stored for later processing.

The record presents considerable factual conflict. The contention on appeal is that essential findings are not supported by the evidence. Resolving conflicts in support of the findings the evidence may be summarized as follows: Drain oil is a waste product. It presents disposal difficulties. It cannot be gotten rid of by dumping into sewers or drain ditches and disposal otherwise is expensive. As a result businesses that produce it accumulate it in sumps and surface containers and generally allow any person desiring drain oil to take it from their premises without cost. Ordinarily, these businesses do not save drain oil for any particular person desiring it, but give it away to those who will come and collect it on a first come, first served basis. In the geographical area assigned to respondent by appellant there were a number of competitors for drain oil. There were at least two other companies collecting it and there were numerous individuals and governmental agencies who, from time to time, wanted to and did secure drain oil for their uses. Those desiring drain oil call upon the service stations and garages, and secure permission to take the oil accumulated in the sumps or other receptacles. Service stations and garages and the like at which drain oil is accumulated are generally located on well-traveled and well-known streets or highways. Their names and locations are listed in numerous directories, such as telephone and city directories and in lists compiled by oil companies of stations and garages using their products, all of which are available to anyone seeking that information. Appellant does not maintain any record of the names and addresses of the service stations and garages where drain oil is accumulated and keeps no record of the oil storage capacity of individual stations and garages. Its drivers do, however, gain knowledge of such matters as they go about their areas. There was no record of the time or frequency of picking up oil at any particular station or garage. Respondent, too, never compiled any such records from his experience in collecting drain oil in his territory while employed by appellant. During the several years he was employed he was not introduced personally to the producers of drain oil except that on one occasion in Reno, Nevada, he was so introduced by another of appellant's employees. However, during the period of his employment, appellant did become personally acquainted with many of the producers of drain oil, but his ability to secure permission to pick up drain oil did not depend substantially on such personal acquaintanceship. Appellant's ability to secure drain oil in competition with other collectors did not depend upon any confidential information with regard to the most economically feasible time to pick up the oil at different service stations and garages nor upon any other secret or confidential information. After about three years' employment by appellant, respondent left his employment. He had already purchased a tank truck suitable for collecting drain oil. He at once began to work the same territory he had worked while employed by appellant and went from place to place soliciting permission to pick up drain oil from the stations and garages where he had procured it while working for appellant and wherever else it could be had. In the week following his quitting respondent advised appellant's employee who succeeded him where he had last picked up oil and where oil would be available. That employee went to the localities indicated by respondent and was able to secure drain oil without difficulty. Respondent did not conceive his plan to collect and sell drain oil with any intent to injure appellant. There was nothing in the nature of a regular route of call developed or used by respondent during or after his employment by appellant. On cross-examination respondent testified as follows: In respondent's experience he found that once the garages and service stations started giving him drain oil they continued giving it to him. In developing the area he visited all of the service stations where he hoped to pick up oil and made contact with the proprietors. He requested permission to pick up the oil. He told them he was working for Paraco. In certain areas he gave the proprietors soap and floor sweeping material in return for permission to pick up the oil. He maintained contact with them as much as he could with the purpose of keeping out competition. To some extent he depended upon their good will for the continued privilege of picking up oil. As much as he could he learned the size of their sumps and...