Eastern Business Forms, Inc. v. Kistler, 19422

• Citation: 189 S.E.2d 22,258 S.C. 429
• Decision Date: 23 May 1972
• Docket Number: No. 19422,19422
• Court: United States State Supreme Court of South Carolina
• Parties: EASTERN BUSINESS FORMS, INC., Respondent, v. James E. KISTLER, Appellant.

Page 22

189 S.E.2d 22

258 S.C. 429

EASTERN BUSINESS FORMS, INC., Respondent, v. James E. KISTLER, Appellant.

No. 19422.

Supreme Court of South Carolina.

May 23, 1972.

James G. Long, Jr., of Ward, Howell, Barnes & Long, Spartanburg, for appellant.

T. Louis Cox, of Cox & Brooks, Spartanburg, for respondent.

MOSS, Chief Justice.

Eastern Business Forms, Inc., the respondent herein, brought this action seeking to restrain and enjoin a former employee, James E. Kistler, the appellant herein, from violating a restrictive covenant contained in a contract of employment. The respondent sought to enjoin the appellant from engaging in the sale or distribution of any printed material or business forms of the type sold by the respondent and that he be enjoined from soliciting and selling to its customers within a 100-mile radius of the City of Greenville and within such radius of the central city of the territory assigned to the appellant.

Upon the filing of the complaint, a temporary restraining Order was issued by the trial judge on August 30, 1971. At the hearing set by the court, the appellant opposed the request for a temporary injunction on the ground that the territory sought to be protected was unreasonable. The trial judge, after hearing testimony offered by the parties, issued an injunction Pendente lite restraining the appellant from selling printed products of the same type sold by the respondent in the counties of Spartanburg, Cherokee and Union. This appeal is from such Order.

The respondent and the appellant entered into an employment contract on October 14, 1966. We quote the following from the agreement.

'3. Salesman is to have such territory as may be determined by Employer, and is to receive credit on his account for all sales made within such territory.

'7. * * * It is further understood and agreed that upon the termination of this contract Salesman is not to sell printing products of the type produced or sold by Employer for a period of twelve (12) months within a 100-mile radius of the City of Greenville nor within a 100-mile radius of the central city of the assigned territory of Salesman.'

It appears that the parties to the aforesaid contract performed thereunder until August 15, 1971, when the appellant voluntarily terminated his employment. Upon such termination, he went to work for a competitor and was calling on and selling to customers of the respondent, they being the same customers that he called on when he was in its employment. It further appears from the testimony that pursuant to Section 3 of the contract above quoted, the territory assigned to the appellant comprised an area consisting of the counties of Spartanburg, Cherokee, Union and practically all of the work of the appellant was done in these three counties. Although he worked some areas in North Carolina, this was not a part of his assigned territory.

The trial judge, based upon the foregoing testimony, held that the 100-mile radius provided for in Section 7 of the contract was unreasonable, since such a wide area was not needed for the protection of the business of the respondent. We have held that the restraint as to territory, in order to be reasonable, must be necessary for the protection of the interest of the employer. Standard Register Co. v. Kerrigan, 238 S.C. 54, 119 S.E.2d 533.

The question for determination is whether the trial judge could, after holding that the 100-mile radius provision of the contract was unreasonable, sever that part of the contract and enforce the restrictive covenant contained in the contract...