Walker Coal & Ice Co. v. Westerman

• Decision Date: 04 April 1928
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WALKER COAL & ICE CO. v. WESTERMAN.

263 Mass. 235

160 N.E. 801

WALKER COAL & ICE CO.

v.WESTERMAN.

Supreme Judicial Court of Massachusetts, Worcester.

April 4, 1928.

Appeal from Superior Court, Worcester County; Henry T. Lummus, Judge.

Suit by the Walker Coal & Ice Company against Carl W. Westerman. From a decree dismissing the bill, plaintiff appeals. Reversed and rendered.

J. Hannigan, of Boston, for appellant.

John H. Meagher, Emil Zaeder, John L. Bianchi, and Henry T. George, all of Worcester, for appellee.

CROSBY, J.

The plaintiff, a Massachusetts corporation, is engaged in the selling of ice at wholesale and retail in the city of Worcester, and employs a large number of drivers who distribute ice to its customers in that city. It also sells ice at wholesale to peddlers of ice, in Worcester. The defendant had been in the employ of the plaintiff at various times since 1917 as a ‘striker.’ His work was to carry ice for the driver of the ice wagon, the wagon being in charge of a man known as a ‘driver.’ In the spring of 1923, the defendant was assigned by the plaintiff to a route as driver, and he continued as such until March, 1924, when he was requested by the plaintiff's manager to sign a contract similar to that set forth in the bill. He did not sign the contract at that time and went into the ice business for himself.

In September, 1925, he again entered the employment of the plaintiff, and on or about December 28, 1925, signed the contract set forth in the bill, which is as follows:

‘The Walker Coal & Ice Company hereby employs Carl W. Westerman and he agrees to faithfully perform any duties assigned to him. In consideration of the employment of said employee by the said employer, and weekly compensation now or hereafter to be granted, either verbally or in writing by the employer, the said employee agrees that he will not for a period of five years after any termination of said employment, engage directly or indirectly, either personally or as an employee in any branch of the ice business within the city or town in which said employee has worked for said employer. If within one year of the termination or suspension of said employment, said employees re-enters the employment of said employer, such employment shall be on the same terms and conditions as herein contained.’

The defendant continued in the plaintiff's employ until September, 1926, when he voluntarily left and worked elsewhere. In March, 1927, he applied to the plaintiff's manager for work and was told that there was no place open for him at that time, but he was requested to call later. He did not do so, but shortly afterwards entered the employ of the Brookfield Ice Company. During the time he was in the employ of the plaintiff, both as a striker and driver, his work was to deliver ice from a wagon to the plaintiff's customers along two routes in the city of Worcester. Such deliveries were principally to retail customers; the wholesale business being confined to storekeepers or manufacturing plants along the routes. The business of the Brookfield Ice Company is confined to the sale of ice at wholesale; the ice is shipped from Brookfield in freight cars and unloaded by the purchasers, assisted by the defendant or his helper, and placed in wagons or trucks of the purchasers. The defendant, who is a licensed weigher, weighs the ice so sold and enters charges therefor in the books of the company, collects and deposits the amounts received from such sales, and acts as manager of the company in connection with its Worcester business. The plaintiff and the Brookfield Ice Company both sell ice at wholesale to individual dealers or to peddlers, who resell the ice at retail to the public in all sections of Worcester.

Although the master found that up to the date of the hearing before him none of the customers of the Brookfield Ice Company had been customers of the plaintiff on any route on which the defendant worked while in the plaintiff's employ, that none of the customers of that company have been solicited for business by the defendant, and that the latter has not interfered with the plaintiff's business by the use of information gained while working for the plaintiff, he also found that, as manager of the Worcester plant of the Brookfield Ice Company, one of his duties is to attempt to increase the business of that company in Worcester, and that the nature of his present employment is such that information gained by him while in the employ of the plaintiff might now be used by him to the plaintiff's damage, although up to the date of the hearing he has not divulged such information to any one who would use it to the detriment of the plaintiff.

It is the contention of the defendant that, considering the nature of his present employment, the restriction in the contract is wider than is reasonably necessary for the protection of the plaintiff, and his present employment is not such a violation of the contract as entitles it to injunctive relief.

The extent of the relief, if any, to which the plaintiff in a case of this kind is entitled for breach of contract depends upon the facts in each case.

[1] A contract restraining freedom of...