Boisen v. Petersen Flying Service

383 N.W.2d 29 (Neb. 1986)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Boisen was a lifetime resident of Kearney County and a farmer with his father since 1971. Boisen got a private pilot certificate in 1977 through Petersen Flying Service. Petersen was engaged in the business of aerial spraying of herbicides and insecticides. Boisen farms was, in fact, one of Petersen’s customers. In 1979, Boisen began training toward a commercial pilot certificate, and Petersen instructed him and indicated an interest in hiring him once he obtained his commercial pilot certificate. Boisen got the certificate in 1981 and arranged for special instruction in flying a spraying plane. Petersen supplied this training. When Boisen became proficient, Petersen offered Boisen a written agreement. That agreement held that if Boisen did not enter employment with Petersen or if he did but then later left that employment, he would not compete with Petersen within a radius of 50 miles and for 10 years. Boisen signed the agreement on July 6, 1982. Boisen did some aerial spraying but was eventually fired. The only on the job training that Boisen got was on how to mix the chemicals to be sprayed and applying chemicals to customer fields. The chemicals were in fact mixed according to the manufacturer’s label. After discharge, a suit was initiated. Boisen in his petition alleged that the covenant not to compete was unreasonable in both area and time and did not protect the legitimate interests of Petersen. Boisen wanted the covenant not to compete to be declared to be invalid. Petersen claimed that the agreement was reasonable and necessary for the protection of his business and if the court found that the covenant was not that it should be reformed as to be equitable between the parties. At trial, it was determined that Petersen did nothing to retain his customers and basically waited for them to call. There was no customer loyalty other than that based on price, and there were no trade secrets. The location of the customers was obvious and open. There was no customer list, and it was determined that Boisen learned no more from Petersen than he would have learned if he had worked for another company. Petersen stated that it would not be logical for him to train someone and then allow that same person to go out and compete with him in the same area. The district court found the covenant unreasonable and unenforceable. The court refused to modify it. Petersen appealed.