French Bros. Bauer v. Townsend Bros. Milk Co.

The action is for injunction, on the ground of unfair competition. The plaintiff company claims that the defendant company, by enticing away the employes of the plaintiff, for the *Page 178 purpose of securing trade routes built up by the plaintiff company, and in the use of the name Townsend Bros. Milk Company, in an endeavor to seize the good will of the plaintiff company, is guilty of unfair competition. The facts as disclosed by the record are: In 1906, a corporation known as the French Bros. Dairy Company purchased the Townsend Milk Company, at that time owned and operated by John Townsend, the father of Henry, Elmer, and Roy Townsend. Later the French Bros. Bauer Company was incorporated, and the Townsend dairy was conducted as an independent branch of that company. In 1915, the French Bros. Bauer Company purchased the business of Charles I. West, and then conducted the Townsend business and the West business under the name of the Townsend-West Dairy. The three sons of John Townsend were employed in the business by the plaintiff, and continued to be so employed until January, 1924, when Henry Townsend left and became identified with the Niser Ice Cream Company, which was, in a measure, a competitor of the plaintiff company. In June, 1925, Elmer and Roy Townsend left plaintiff's employment, and became associated with Henry Townsend in a competing business, under the name of the Townsend Bros. Milk Company. Elmer Townsend had been the manager in charge of the Townsend-West branch, and had the full direction and control of all advertising, and of the hiring of employes. During this time, while he was the executive head of the Townsend-West *Page 179 Dairy, he spent large sums advertising the name Townsend, not using West in connection therewith, as designating brands of milk, buttermilk, cream, butter, etc. The evidence shows that a plan was formed to engage in a competitive business, under the name of the Townsend Bros. Milk Company, and that, in carrying out this plan, old milk wagons were purchased of the Townsend-West Company, partly through Elmer Townsend, its manager, to be used by the new company. The name was placed in the telephone book, and various other plans were made to embark in the new business. When Elmer Townsend resigned, he immediately went into the new enterprise. Various drivers, skippers, and the chief route foreman of the plaintiff left at once, and became associated with the Townsend Bros. Milk Company. A campaign was then started to secure customers for the new company, and the old employes of plaintiff company were employed to assist in carrying out this plan, soliciting over the same routes as they had been employed to do by the plaintiff company. Many of the former customers of the French Bros. Bauer Company were secured by this method. There is no need for a further discussion of the evidence, but from an examination of the record we are of the opinion that plaintiff has offered sufficient evidence to warrant the issuance of an injunction. The important question, it seems to us, is the employment of plaintiff's former employes, route men, etc., in securing for the new company the *Page 180 customers of the plaintiff company. If a written list of the route customers was kept by plaintiff company, and the employes, or the defendant company, took the list and used the same, it is a well-recognized rule that injunctive relief would be proper. While there is no written list of such customers, the former employes knew and had in mind every such customer, and the reason for the rule is just as pertinent under these circumstances as though there had been a written list. There is ample authority for holding that such action should be enjoined. An injunction will be allowed to prevent the defendant company from employing any of the drivers, route foremen, or skippers of the plaintiff company, who were formerly, or are at present, employed by the Townsend-West Dairy Company, to serve or work over the trade routes served by such employes at the time of leaving the employ of the plaintiff company; also from employing such employes to solicit to become customers of the defendants the customers served by them while employed by the plaintiff company. The injunction will continue for one year from the date of the decree entered in the superior court herein. Decree accordingly. HAMILTON, J., concurs.