Suburban Gas of Grand Junction, Inc. v. Bockelman

• Decision Date: 19 April 1965
• Docket Number: No. 20827,20827
• Parties: SUBURBAN GAS OF GRAND JUNCTION, INC., a Colorado corporation, Plaintiff in Error, v. Herb BOCKELMAN and Cash Gas Co., Inc., a Colorado corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 268

401 P.2d 268

157 Colo. 78

SUBURBAN GAS OF GRAND JUNCTION, INC., a Colorado

corporation, Plaintiff in Error, v. Herb BOCKELMAN and Cash Gas Co., Inc., a Colorado

corporation, Defendant in Error.

No. 20827.

Supreme Court of Colorado, En Banc.

April 19, 1965.

Rehearing Denied May 10, 1965.

Helman, Younge, Hockensmith & Stacey, Grand Junction, for plaintiff in error.

Felix D. Lepore, Denver, for defendants in error.

SUTTON, Justice.

This is an unfair competition case.

Plaintiff in error seeks reversal of the judgment of the trial court which denied a temporary injunction against defendants in error and which dismissed its complaint. We shall refer to plaintiff in error as Suburban, to defendant in error, Herb Bockelman, as Bockelman, and to defendant in error, Cash Gas. Co., Inc., as Cash Gas.

The record discloses that Bockelman, a propane gas route saleman for 14 years in the Grand Junction, Colorado area, was an employee of Suburban for approximately three years prior to his employment with Cash Gas. Prior to that time he had worked for two other local concerns, each of which had been bought up by Suburban. Apparently, each time that Bockelman changed employment in the past, he took some of his former customers with him to his new company. Suburban let Bockelman out due to a reduction in force and shortly thereafter in 1963, he went to work for Cash Gas. Soon thereafter, Suburban began to notice a loss of its customers. By the time of the hearing which involved Suburban's attempt to temporarily enjoin Bockelman and Cash Gas from soliciting its accounts, the loss amounted to about 60 accounts, or 20% of its business.

The evidence is that Bockelman had no written contract not to compete with Suburban after leaving its employment, and that he did not physically remove or possess any books or records of his former employer when his employment was terminated. The complaint, however, is that he had through usage and time memorized his route customers, their financial standing as customers and was able to tell about when they would need new supplies of propane. It is alleged that he used such information to urge them to change to Cash Gas as their new supplier.

Admittedly, the price of propane gas and the size of the tanks were the same among the three local competing companies. According to Suburban's manager, it was service rendered by the route salesman that made the principal difference as to which company the customers would patronize. It was agreed that Bockelman had rendered excellent service, was well known and did extra repairs and services for his customers. In regard to service, Suburban's manager testified in pertinent part:

'* * * The things it takes to get a new account, you have to offer something the customer feels is better than what he's getting and if he's getting proper service from the company he's dealing with, the chances of taking that customer are pretty slim.'

Suburban, both in the trial court and on this writ of error, urged that Bockelman's knowledge of its customers gained while employed with it, is confidential; and though it does not seek to enjoin competition, it does not seek to enjoin...