Fullerton Lumber Co. v. Torborg

BROadfoot, J.

(dissenting). This action was brought to obtain an injunction restraining the defendant, a former employee of the plaintiff, from breaching his contract of employment. The major poxdion of the complaint was *487 devoted to allegations supporting the claimed breach of the contract. The final paragraph of the complaint alleged that because of the breach plaintiff had suffered irreparable damages and would continue to suffer damages unless the defendant was restrained. This allegation as to damages was to show that plaintiff had no adequate remedy at law. The prayer for relief asked for the injunction and concluded by asking for such other equitable relief as may be proper, including judgment for damages. There was no allegation as to the amount of damages claimed by the plaintiff. The action was tried to the court.

Upon the trial the only testimony offered by the plaintiff as to damages dealt with comparative figures as to gross sales by the plaintiff and by the defendant’s new company, which was in direct competition. No evidence was introduced or offered as to loss or profits. No proof was introduced that would have enabled the trial court to determine plaintiff’s damages. At the conclusion of the trial the court determined that the employment contract was void because the period during which the defendant agreed not to compete with plaintiff was unreasonably long. Judgment was then issued dismissing the complaint. Plaintiff appealed to this court and our decision is reported in 270 Wis. 133 , 70 N. W. (2d) 585 .

Upon the appeal only the validity of the employment contract was argued. The plaintiff’s brief concluded as follows:

“We respectfully submit that the judgment of the trial court dismissing the .complaint should be reversed, and the case remanded with directions to enter judgment enjoining defendant in accordance with the prayer of the complaint.”

Our decision in that case contained the following directions to the trial court (p. 148) :

“The judgment is reversed, and the cause remanded for a determination by the trial court of the extent of time as *488 to which the restrictive covenant with respect to defendant’s operations in Clintonville is reasonable and necessary for plaintiff’s protection, and for judgment enjoining defendant from a breach thereof. It appears to us that a minimum period of three years would be supported by the evidence. It was established that after defendant took over the managership of plaintiff’s yard in 1945 he built the business to a fairly constant level in that period of time, and it must be assumed that any manager taking his place could accomplish the same thing if the restrictions of the contract were enforced against the defendant during that time. In view of the fact that defendant has engaged in continuous competitive activities since December 1, 1953, employing the advantage gained while he was in the service of the plaintiff, the injunction should run from the date of the judgment rather than the date the employment terminated. . . .

“By the Court. — Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.”

The defendant moved for a rehearing, which was denied. No motion was made by the plaintiff to correct or enlarge our mandate. Instead the plaintiff served and filed a motion in the trial court asking permission to reopen the case to enable it to present proof as to damages. This motion was denied. The trial court determined that the record contained no proof from which he could determine damages, and damages were accordingly denied. The injunction was issued in accordance with the decision of this court. The plaintiff has again appealed.

When a cause is remanded by this court to a trial court for further proceedings it is the duty of the trial court to proceed in accordance with our mandate where it is clear and unambiguous. If there is ambiguity in the mandate the trial court may search the opinion or decision for help in construing the mandate. A reading of the decision and the mandate leaves no doubt in my mind, nor in the mind of the trial court, that he should proceed as he did. This *489 is in accord with sec. 274.35 (1), Stats., and Supreme Court Rule 58, which appears in the statutes as sec. 251.58, which read as follows:

“274.35 (1) Upon an appeal from a judgment or order or upon a writ of error the supreme court may reverse, affirm, or modify the judgment or order, and as to any or all of the parties; and may order a new trial; and if the appeal is from a part of a judgment or order may reverse, affirm, or modify as to the part appealed from. In all cases the supreme court shall remit its judgment or decision to the court below and thereupon the court below shall proceed in accordance therewith.”

“[Sec. 251.58] Rule 58. When a judgment is reversed, the cause, if tried by the court, will ordinarily be remanded for final judgment, and if tried before a jury, for a new trial; but if it appear in a jury cause that there has been a full trial and that justice will be best subserved by the direction of a judgment, the cause will be remanded for final disposition according to the right of the matter, whether such judgment will have the formal verdict of a jury as a basis therefor or not.”

This action was tried to the court and was remanded for final judgment, pursuant to Rule 58. This is the ordinary procedure outlined by the rule, and nothing is made to appear that anything extraordinary was involved.

Without citing too many authorities I believe the procedure here is governed by our decision in State ex rel. Lisbon Town Fire Ins. Co. v. Crosby, 240 Wis. 157 , 2 N. W. (2d) 700 . Separate actions were brought by the fire insurance company against three policyholders. The actions were consolidated for trial. The actions were to recover the amount of assessment made against each defendant as a member policyholder of the company. The complaints also asked to recover the costs and charges incurred in the proceedings to collect the assessment. The matter was tried to the court. At the conclusion of the trial the actions were dismissed on the ground that the plaintiff had failed to *490 establish its case by competent testimony. Upon appeal to this court the judgment of the trial court was reversed, and the causes were remanded with directions to enter judgments in accordance with the prayer of the complaint in each action. Our decision therein is reported in Lisbon Town Fire Ins. Co. v. Tracy, 236 Wis. 651 , 296 N. W. 126 . Upon remand the trial court permitted the defendants to raise an issue not raised in the original trial and entered judgments for the amount of the assessments but not for the costs and charges incurred by the plaintiff in collecting the same. The insurance company applied to this court for a writ of mandamus to compel the trial court to enter judgment pursuant to the mandate of this court. The writ was issued. We held in that case that a litigant is concluded by the mandate of the supreme court as to all matters actually presented or which might, consistently with legal rules, have been presented on appeal, citing Monahan v. Fairbanks-Morse Mfg. Co. 150 Wis. 512 , 137 N. W. 748 ; State ex rel. Littig v. Superior Court, 231 Wis. 58 , 285 N. W. 419 ; and Litzen v. Eggert, 238 Wis. 121 , 297 N. W. 382 . The question of damages in the present case could have been presented to this court upon the first appeal, but when plaintiff chose not to do so I believe it is concluded upon that issue.

In the same case we said that if our mandate was erroneous the contentions of the defendants would have been considered if presented on a timely motion for a rehearing or a motion for modification of the mandate. Plaintiff failed to make any such motion in this case. It is my opinion that the trial court had no authority to open the case to hear proof of damages and that his action in refusing so to do was proper. Accordingly, I think the appeal of the plaintiff should have been dismissed, or in the alternative the judgment should have been affirmed.

I am authorized to state that Mr. Justice Currie concurs in this dissent.