French Bros. Bauer v. Townsend Bros. Milk Co. , 21 Ohio App. 177 ( 1925 )

I do not concur in the conclusion of my associates that an injunction should be issued in this case against the employment of former employes of the French Bros. Bauer Company, working under the name of the Townsend-West Dairy Company. It is not plain, nor is there any showing, that Henry, Roy, or Elmer Townsed violated any contract, or took with them any list of customers or trade secrets of the plaintiff company; nor is it shown that any of the employes who left the plaintiff company violated any contract or took any trade secrets of the plaintiff in leaving its employ.

The law is that in the absence of an express contract an employe may solicit for his new employer the business of his former customers, and will not be enjoined from so doing at the instance of his former employer.

These employes were not bound either expressly or impliedly not to disclose or make use of any information that came to them while in the employ of the plaintiff's branch. See Home SteamLaundry Co. v. Smith, 8 N.P. (N.S.), 402.

As was stated in H.B. Wiggins Sons' Co. v. Cott-A-Lap Co., (C.C.), 169 F., 150, paragraph 2 of the syllabus:

"Mere hiring of complainant's former confidential servant, who had acquired knowledge of the complainant's trade secret, by complainant's business rival, in the absence of anything more than mere opportunity on defendant's part to learn and use complainant's secret, was insufficient to justify the issuance of an injunction, either against defendant or the employe, restraining the employe from imparting, and defendant from receiving or using, information concerning such secret in defendant's business, to complainant's prejudice."

The injunction allowed by the majority of this court is against the Townsend Bros. Milk Company from employing these men to solicit or work over the routes served by such employes at the time of leaving the branch of the plaintiff company. What cannot be done directly, may not be done indirectly. The injunction allowed in this case indirectly affects the employes, and prevents them from working over the routes or soliciting the customers on the routes over which they once worked. In my opinion an injunction should be refused, and the petition dismissed.