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L & R Ins. Agency, Inc. v. Mcphail

FEBRUARY 14, 1968.

L & R INSURANCE AGENCY, INC., A CORPORATION, AND GOLDEN RULE INSURANCE CO., A CORPORATION, PLAINTIFFS-APPELLEES,

v.

PHILIP K. MCPHAIL, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of St. Clair County, Twentieth Judicial Circuit, St. Clair County; the Hon. RICHARD T. CARTER, Judge, presiding. Reversed and remanded with directions.

MORAN, J.

Rehearing denied April 9, 1968.

Defendants appeal from a judgment of the Circuit Court of St. Clair County awarding the plaintiffs damages totaling $36,188.34, and enjoining them from violating a restrictive agreement for a period of three years from the dates of the termination of their respective employments.

Defendants are former employees of the plaintiff L & R Insurance Agency. McPhail worked as a salesman from October, 1958, to January, 1960. He returned to the plaintiff company in September, 1961, and remained until October, 1964. During the final year McPhail was the sales manager. Hines also had previous employment with the plaintiff, the latest period being from March, 1960, to October, 1961. On September 9, 1961, the defendants entered into separate but identical written agreements with L & R Insurance Agency. These agreements granted them the area of Madison and St. Clair Counties as their sales territory and further provided:

". . . The Second Party (defendants) agrees that if the contract between the First Party (L & R Insurance Agency) and the Second Party is terminated, that the Second Party will not solicit or sell life or accident and health insurance . . . in the State of Illinois to anyone who holds a policy in the Golden Rule Life Insurance Company or in any other company represented on an agency basis by the First Party, or to anyone who has held such a policy within three months prior to such solicitation or sale."

The employment of Hines was terminated on October 1, 1961, approximately three weeks after the agreement was executed. In 1964 he became an agent for Central National Life Insurance Company. McPhail's employment with plaintiff agency terminated in October, 1964. In December, 1964, he was licensed as an agent and manager for Central. The six agents under his supervision, including Hines, were all former agents of the plaintiff, L & R.

This action was brought on December 22, 1964, to obtain injunctive relief and monetary damage from the defendants for alleged violation of these agreements. It was alleged that the defendants solicited and sold Central coverage to accounts which had been insured by the plaintiffs. Nine accounts were in question — all within the State of Illinois, five within the St. Clair and Madison County area. The amended complaint stated in part:

"11. That, commencing on or about the first week in December, 1964, and prior and subsequent thereto, and even up to the present time, defendants have illegally, maliciously and wrongfully conspired together and with other persons with the intent and for the purpose of violating their respective covenants with plaintiff agency, and with the intent and purpose of injuring the business of both plaintiffs, and with the intent and purpose of soliciting and selling Central National Life Insurance Company insurance coverage to large numbers of plaintiffs' policyholders and customers respectively."

The court ordered issuance of a temporary injunction without notice and without bond prohibiting the defendants from soliciting or selling insurance to Golden Rule policyholders and from engaging in acts or practices of conspiring together with the intent of causing plaintiffs to lose any further business with Golden Rule policyholders pending final determination. On January 20, 1965, the court ordered the temporary injunction dissolved. The defendants then filed a Motion to Dismiss the Complaint and a Motion in Suggestion of Damages. On May 5, 1965, the court denied the Motion to Dismiss, and the Motion in Suggestion of Damages was taken under advisement pending further determination of the case. At the close of this evidence on September 30, 1965, the court again placed both defendants under injunction, pending disposition of the case.

On the 5th day of January, 1966, the trial court entered its final order and found that the covenants were valid and enforceable after imposing a three-year limitation commencing from the date of termination of employment of each defendant. Thus the covenant, as applied to Hines, would only be in effect until October, 1964, which was prior to the alleged violations. McPhail's covenant would be in effect until October, 1967. The trial court also found that the defendants knowingly and wilfully conspired, with the intent to damage the plaintiffs, to violate and did violate the covenant existing between McPhail and the plaintiffs. Defendants' Motion in Suggestion of Damages was denied. Golden Rule was awarded $28,118.59 from the defendants jointly and severally and from McPhail, individually, the sum of $2,539.15; L & R was awarded $4,983.60 from the defendants jointly and severally and $547 from McPhail individually.

The defendants contend that since the restrictive covenant was unlimited as to time and prevailing throughout the State of Illinois, it was contrary to the public policy of this state and thus void and unenforceable.

In Beltone Electronics Corp. v. Smith, 44 Ill. App.2d 112, 194 N.E.2d 21, the court, quoting from the Restatement of Contracts, stated that restrictive covenants in an employment contract are reasonable if (1) the restraint is no greater than that required for the protection of the employer, (2) it does not impose undue hardship on the employee, and (3) is not injurious to the public. In that case the defendant had been in an administrative position with the plaintiff company. The contract prohibited him from being employed by anyone in the manufacture or sale of hearing aids for a period of one year. The court held that due to defendant's non-technical position and the exclusiveness of the contract, the restriction went farther than necessary to protect the plaintiff. In Solar Textiles v. Fortina, 46 Ill. App.2d 436, 196 N.E.2d 719, the employment contract specified that the employee could not engage in any similar or competitive business in the cities of Chicago or New York, or within a 350-mile radius of either city. The court held that when the contract is drawn in such a way as to restrict competition per se, the contract is void and unenforceable.

In Smithereen Co. v. Renfroe, 325 Ill. App. 229, 59 N.E.2d 545, the defendant who was a manager of the plaintiff's exterminating business, was prohibited from competing in the same business within the City of Chicago for a period of five years. The court held that such contracts are valid and enforceable when they are for a limited time, within a limited area and such limitations are reasonably necessary for the protection of the employer's business.

The contract in the present case had no time limitation and the area was the State of Illinois. In reference to defendant Hines there is no evidence to show that he worked outside of the St. Clair and Madison County area during the period covered by the contract. Although the finding of the trial court had no bearing on the result, it erred in finding the covenant relating to Hines was valid and enforceable. It was unreasonable as to time and area. In addition, his employment terminated within ...


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