# Orkin Exterminating Co., Inc.(Arwell Div.) v. Burnett

> Supreme Court of Iowa · July 18, 1968 · 160 N.W.2d 427

URL: https://www.frixlaw.com/law-library/cases/9722814

## Case

- **Full name:** ORKIN EXTERMINATING COMPANY, INC. (ARWELL DIVISION), Appellant, v. Robert H. BURNETT, Appellee
- **Court:** Supreme Court of Iowa
- **Decided:** July 18, 1968
- **Citations:** 160 N.W.2d 427; 1968 Iowa Sup. LEXIS 903
- **Precedential status:** Published
- **Opinion:** Dissent by LeGRAND
- **Judges:** Stuart, Garfield, Larson, Snell, Mason, Legrand, Moore, Rawlings, Becker
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9722814

## How later opinions describe it (automated extraction)

- noting that “‘the measure of damages in an action for the breach of an agreement by the seller not to reenter business in competition with the buyer is usually difficult of exact computation’ ” (quoting Gallagher v. Vogel, 157 Neb. 670, 61 N.W.2d 245, 250 (1953)

## Opinion text

LeGRAND, Justice
(dissenting).
I dissent from Divisions II and III of the majority opinion.
The majority concedes damages in an action of this kind are uncertain and difficult to prove. The trial court found plaintiff was entitled to $1000.00. The majority has increased that amount to $3000.00. The majority figure is arrived at by assuming all plaintiff’s former customers now serviced by defendant were lost because the restrictive covenant was violated. I doubt that plaintiff is entitled to this generous conclusion. Furthermore, I find no evidence in the record to justify any award for loss of good will.
Since the majority apparently concedes the figure arrived at leaves something to be desired as far as certainty and proof are concerned, I would prefer to permit the trial court’s finding to stand. This, it seems to me, is an ideal case for the application of our oft-repeated rule that in de novo appeals we give weight to the findings of the trial court.
I find the result achieved by the majority is no better, merely larger, than that of the trial court.
I also dissent from that part of the majority opinion which finds the defendant in contempt and assesses his punishment. I agree the matter of contempt was before the trial court and some finding should have been made, one way or the other. Under such circumstances we should remand for entry of a judgment based upon the evidence presented to the trial court. Here we have elected to by-pass this procedure and make an original finding of contempt ourselves. This is an undesirable *433 policy to adopt. The majority relationaliz-es by saying the contempt committed was really against this court and not against the district court because the injunction issued was pursuant to our opinion on the first appeal of this case and therefore the violation was actually “a contempt of the order of this court.” ( 146 N.W.2d 320 )
I cannot agree with this reasoning. In our original opinion we found an injunction should have issued. We remanded to the district court and instructed that court to issue an injunction. The district court did so. At no time could the defendant have been in contempt of this court because no order had been issued by us directed at restricting his actions. It was the district court injunction which he violated. It is only that order of which he is in contempt, if indeed he is in contempt at all. I hold we should remand to the district court for entry of an order either finding the defendant to be in contempt or finding him to be innocent thereof. We can then, if necessary, review the matter on appeal under usual rules of procedure.
The vice of the present finding by the majority is the holding defendant is in contempt of this court. I find that to be entirely unacceptable. First we find him in contempt; then we impose a fine of $250.00. Up to this point we have ignored the right of the district court to make an original finding of contempt regarding one of its own injunctions. Then, however, we provide if defendant fails to pay the fine the district court shall determine what punishment he shall have in lieu thereof. If the contempt is of this court, as the majority insists, and if we are to fix the punishment, then we should completely dispose of the matter.
I would remand for entry of an appropriate judgment on the contempt matter; but in any event if we are to make the finding of contempt on the present record, then we should completely and fully determine the punishment to be imposed.
I would affirm as to Division II and reverse and remand as to Division III.
MOORE, RAWLINGS and BECKER, JJ., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9722814. Public record. Not legal advice.