*1 March 20, 9212. In Bank. A. No. [L. 1929.] Respondent, (a Corporation), PASADENA ICE COMPANY al., Appellants. v. J. WALLACE REEDER et *2 Dunnigan Appellants. and H. Forster & E. for Haas Q-. Thompson Raymond Sidney Parsons and Re- J. spondent. corporation engaged in the
CURTIS, The plaintiff J. is a Pasa city of delivering in the selling ice business of are all neighboring defendants dena communities. The Reeder employees plaintiff. The defendant therein un employ 1910 and continued plaintiff’s entered in a number plaintiff til the fall of 1925. He worked for “in the office end during time, said but capacities different assistant quit it.” At time he said he was manager plaintiff company. March, 1925, Reeder engaged in city himself ice business for in the of Pasa dena and carried on business under said name of Purity Company. may Ice He also have on carried said ice business Purity under other than the names Ice Com pany defendants, in connection with fact but this other is not material. We will refer his ice activities city being in the as all Pasadena carried on name, Company. under the Ice The defend Ziesche plaintiff ant anwas period for a years, during sixteen employ last five plaintiff superintendent ment with the delivery. He severed his connection with in September, 1923, *3 and became Purity with associated in Company Ice March, 1925. absence Reeder, of Mr. Ziesche was charge in Purity of the business of the Company, Ice and designates manager. himself as a “sort of I have not been ’’ given any Lyon title. The employed defendant by plaintiff telephone operator March, 1922, as August, to date, 1924. began Since the last-named after and Reeder doing Purity business as the Company, Ice she has been employed by some of the defendants to assist them in soliciting for delivery sale orders and ice. of The re maining employed by defendants were plaintiff of as drivers delivery trucks, several in employ and while had routes charge territory of various in the described, above in plaintiff sold and delivered ice to the residents thereof. The of by plain and inhabitants term these various defendants varied from ten tiff of or eleven period in some instances a much shorter of in time Practically all others. of them associated themselves with March, Purity Ice Cream 1925. At that time some employ plaintiff them had been out of the period time, for a less year, over a while others and 700 employ case of Phelps, quit plaintiff’s the defendant he 1925, March, and immediately entered a business
arrangement Purity Company. with the Ice Under plan adopted by operating Reeder in Purity Company lee outright he would sell ice in wholesale quantities persons in turn would retail the ice thus purchased by them to individual customers, and it was plan accordance with that the individual defendants herein, Reeder, other than Lyon, Ziesche and asso became ciated in business Purity Company with the Ice there and after selling carried on delivering the business of and ice city the inhabitants of vicinity. and Pasadena Each of these defendants delivery owned the truck used him in bought his business and ice Purity direct from the Company Ice in wholesale lots and then retailed it direct to consumers. Each defendants, of these while the em ploy of plaintiff, separate had a district or territory which supplied he ice, with leaving plaintiff’s and after employ associating and himself with the Company, Ice as ' began forth, above set delivery he the sale and ice in territory same in which he as worked | plaintiff, and solicited the business patronage and ¡ former customers of plaintiff, whom sup : he had formerly plied ice.
The court, above facts found were the trial findings judgment the court entered its permanently enjoining canvassing the defendants “from soliciting or from, sale supplying any of ice or to, ice plaintiff customers of said solicited, so canvassed or heretofore plaintiff through served with ice the de- fendants, them, otherwise, during or or time them, defendants, the said employ plaintiff selling serving ice for the as complaint.” plaintiff’s judg- stated in amended From this appealed defendants have under ment the the so-called alter- provisions native method in accordance with the of section *4 Code of Civil 953a of the Procedure.
Appellants’ supplement brief contains no setting forth any parts or other the evidence on appeal. record Practically none of evidence in appellants’ the is set forth position takes Respondent brief. its brief the that as the filing stood the record at the time of its brief there
701 nothing before court for it to answer. To this meet ob jection reply printed in their findings brief of the court and case, extracts from the evidence in the to have ask these matters they considered as if had been part opening made a of their brief or been included in a supplement objection thereto. request No to this has been by respondent made and no motion has been made appeal appellants’ dismiss the comply failure to with the provisions providing 953c, section printing by for the parties portions of such record as desire to call to attention practice court. While this is commended, not to be and should not be encouraged, objection respondent absence to the court’s portions consideration the evidence appellants’ reply brief, record forth in set we will treat the purposes record us before for all as if said matters had been incorporated appellants’ original brief. Notwith respondent’s standing contention nothing that there was be fore this court for it to answer, it has in its replied brief arguments made for a reversal of the judgment. It in turn failed to set brief, forth or in any supplement thereto, any evidence or record in the action relied. which it Under these circumstances we respondent must conclude that the is content with the state evidence ment of the and such additional appear matters as appellants’ reply brief, may and that the same be con appeal sidered us as the record on herein. have, We however, investigation not restricted our of the record to portion appellants’ contained reply brief, but reporter’s transcript have looked in an endeavor ascertain the true facts of this case. This procedure, we think, proper, is at least under the circumstances of particular case, parties where the have failed to out set degree with completeness. in their briefs record Empire Laundry Lozier, the case of Steam v. 165 Cal. 1914C, (N. 102 44 R. 95, 628, S.) Cas. L. 1159, A. [Ann. 1180, 1183], quoted approval 130 this court Pac. language following Witkop & Holmes Co. v. Boyce, Rep. Supp. Y. Misc. N. “In [112 recent 874]: adjudications developed, by has been there of our courts body by legislation, looking considerable law toward against compe- of the business world protection unfair *5 702
tition, correctly if interpret and we these decisions court a therefore, equity We, of ready restrain acts. stands to such any express opinion that, independent are of contract of equity will parties, between the restrain acts of plaintiff complains, defendant threatens and which the right of a claims the This arises out violation do. duty employer having origin of of in the relation employee implied and an contract that will not employed, divulge knowledge gained in course his confidential employer’s employment, use information to or ” prejudice. Lozier, Laundry supra, In v. Umpire the case of Steam employee laundry enjoined the trial a former court company, accepted employment with a rival laun- had who receiving soliciting laundry or dry, from manner were, persons work at the time the from of the plaintiff action, employ in said quit of the assigned by along plain- the route “customers of the defendant was tiff to defendant while judgment plaintiff.” affirmed the This court trial been That case has followed court that action. 172 Dickey, v. 120 cases of Cal. more recent Cornish [155 MacCann, Laundry v. 174 Method Co. Cal. 629], Pac. New 1918C, 990], 1022, 161 Pac. and Mackechnie 26 Cas. [Ann. App. 285], 60 539 Pac. Huber, Cal. [213 Co. v. Bread however, injunction the court limited the case, McCann enjoin “soliciting” business, and refused to to the “receiving” voluntarily of business from the defendant patrons employer. his former brought That himto approval following language from quotes with case also Coat, Towel Apron Supply & People’s ease Co. v. Supp. N. Y. App. Light, 171 Div. “There is [157 15]: Light plain- had written list a them evidence [the no in his head was equiva- There what tiff’s customers]. streets, routes, at numbers re- They were on lent. plaintiff. through his service with Their him faces vealed identity known him, and their because familiar to were entry and introduction, employment. He persons strangers, but as them, as known to not solicited through plaintiff gained he had to take He what used him. its customers.” away
Appellants concede the force and of these effect authorities applicability legal and the principles therein enunciated particular to the facts of the cases to which applied. They seek, however, to differen present tiate case just those cited the fact that here, many them, at least left employ respondent prior entering some time their Company, relations and that Ice the case of some year elapsed more than *6 from they employees the time ceased to be of the until company. associated In themselves with a rival this connection unfairness on the assert that the part the employee of an soliciting patrons from business the employer, his prevent former which to a court of and equity interpose restraining order, very will its “would seem largely depend employer to on whether the former had a permit opportunity reasonable time within which to help his fully acquainted become to with the customers on the again in question route before such customers by employee.” solicited his former servant or find no We such distinction in eases, made or other author ities dealing question. hand, with this On the other is it definitely stated, practically every in instance which to our against called, attention has been competition, that the unfair protect employer, which the courts will the consists the by employee use prejudice employer the to the of his former gained by employee the confidential information the dur ing prior employment his as to the business secrets his employer. wrongful by former It is use the the employer business secrets the which the courts employer. injury have held in constitutes the to the This jury may employer result as well after the has succeeded securing employees place new to the of his take may injury before. may ones as well as It well be that the great other, long not be as as in one instance but so injury employer as the substantial his sustains by acts of his former employees, is he entitled to the by protection afforded the law in cases of that character. appreciate suggestion great We of counsel that practiced by caution should be courts the exercise of enjoin power to and restrain person their a pursuing calling profession may he choose to follow. This right right guarded zealously property a has ever been is by Mac (New Laundry equity. Co. v. courts of Method except a Cann, person, It should not taken from supra.) be convincing showing exercising that in a clear most express duty right labor, violating is he owes to he others. think been out Such a case we has made respondent against present in the action. organi contradiction The evidence without shows perfected function appellants, permitted zation if members, most manner would work intended respondent. injury At the serious the business of the organization Reeder, appellant head at of this is the prior years quit respondent’s employ, time and for some he manager respondent. In assistant thereto, was complete position gained an intimate and have he must knowledge respondent as carried on in business of their scene of territory appellants selected as the operations. chief he Reeder’s assistant selected As Mr. just who, prior to appellant number Ziesche, respondent, superinten leaving position must deliveries. Ziesche have become dent routes re familiar all the different over operated, general spondent require as well as needs customers routes. remain served on these The ments *7 except Lyon, ing appellant former appellants, were respondent, having charge delivery men each of the of they As became particular personally ac a route. respondent, respec of the quainted customers their with the residence, peculiar of their likes and places and fancies tive knowledge greatly of characteristics, a other would securing retailing in and the business of said aid them delivery former customers. These men under former organization their former plan selected routes and in territory solicited customers along where said routes respondent, and delivered for they sold ice and from Undoubtedly patrons. principal, respondent’s former if assigning delivery sole, purpose said men to their not the knowledge gained use enable them to routes was to old respondent winning employees over to them by them as respondent away thus and to take of the customers respondent enjoyed by deprive the business it and result serious dam- That this would along said routes. age deny respondent’s one business we think no would or gainsay. a clear That acts were these of the duty employer violation former owed them to their subject we and, accordingly, have doubt, re- no were to be authorities, equity. strained court of The above as well as others text-writers the courts differ- and ample support ent judgment states furnish for trial court.
Judgment affirmed.
Preston, J., J., Waste, J., Shenk, J., Seawell, C. Richards, J., and Langdon, J., concurred. petition
A' rehearing for a supreme denied court and following opinion then rendered thereon:
THE The petition COURT. rehearing for is It denied. sufficiently appears from the record that de the individual fendants and all employees respondent entered into a combination to do business under name fictitious Ice Com having pany, purpose for its and effect the creation of a competing employer business to that of their former through the combined use of such confidential information and busi employer ness of their secrets said as had each ob employment. tained their former course While upon right impinging not make appro knowledge priate experience gained use of one advancing entering his interests in other employment, we are that such a satisfied combination as among these several defendants, to have existed that shown object injure destroy is effect of which the direct employer, clearly comes of their former within the business relating competition to unfair equitable principles was, injunction think, here which the we conformity with injunction scope The was not properly issued. appeal until presenta question brought rehearing petition will not for tion consideration thereof. given reason be *8 J., Seawell, dissented.