Landry v. Moody Grishman Agency, Inc., 43720

• Decision Date: 13 December 1965
• Docket Number: No. 43720,43720
• Citation: 181 So.2d 134,254 Miss. 363
• Parties: Robert Joseph LANDRY v. MOODY GRISHMAN AGENCY, INC.
• Court: Mississippi Supreme Court

Page 134

181 So.2d 134

254 Miss. 363

Robert Joseph LANDRY v. MOODY GRISHMAN AGENCY, INC.

No. 43720.

Supreme Court of Mississippi.

Dec. 13, 1965.

Thomas J. Wiltz, Charles K. Pringle, Biloxi, for appellant.

Herman W. Smith, Gulfport, William Joel Blass, Wiggins, for appellee.

GILLESPIE, Justice.

Moody Grishman Agency, Inc., complainant below and appellee here, is a corporation domiciled in Biloxi, Mississippi, engaged in the real estate and general insurance business. It will be referred to hereinafter as the Grishman Angecy. The Grishman Agency filed a bill of complaint in chancery court against Robert Joseph Landry, its former employee, praying for enforcement by injunction of a clause in an employment contract prohibiting the employee from engaging in a competing business. Upon final hearing on the merits, the relief was granted and Robert Joseph Landry the employee, was enjoined from engaging in the insurance business in competition with the Grishman Agency for a period of five years in the counties of Harrison, Hancock and Jackson. Landry appealed.

The essential facts are stated in the light most favorable to the Grishman Agency, in whose favor the chancellor made a general finding. The Grishman Agency and Landry entered into negotiations which resulted in a written contract of employment dated October 25, 1962, as follows:

This Contract made and entered into by and between MOODY GRISHMAN AGENCY, INC., hereinafter referred to as the Employer and ROBERT JOSEPH LANDRY, hereinafter referred to as the Employee; WITNESSETH:

WHEREAS, the Employer is a corporation chartered under the Laws of the State of Mississippi and operates a general insurance and real estate business from its office in Biloxi, Harrison County, Mississippi, and

WHEREAS, it is the desire of the Employer to retain the services of a skilled general insurance man and the Employee has represented to the Employer that he is a well-qualified and capable insurance man, and

WHEREAS, it is the desire of both parties hereto to enter into an agreement of employment for a given period of time, looking toward a more permanent arrangement if the results of such temporary period of employment are satisfactory to both parties hereto, now, therefore,

In consideration of the premises, the sum of ONE DOLLAR ($1.00) paid by the Employer to Employee, the mutual benefits to be derived herefrom and the further considerations passing between the parties, as hereinafter set forth, it is agreed by and between the parties as follows:

1. The Employer agrees to employ and the Employee agrees to work for the Employer for a period of one (1) year commencing January 1st, 1963, and ending with the close of business on December 31st, 1963.

2. As compensation for his services to the Employer, the Employee shall receive: * * *.

A. A salary of One Hundred Dollars ($100.00) per week during the term of this Contract.

B. In addition to the salary provided in subparagraph A. above, the Employee shall receive one-third (1/3) of all the gross general insurance commissions in excess of Fifteen Thousand Six Hundred Dollars ($15,600) for the year commencing January 1st, 1963 and ending with the close of business on December 31st, 1963, provided the employment is not terminated sooner by one of the methods hereinafter set forth. In the event the contract is so terminated, then the Employee will be paid one-third (1/3) of all gross general insurance commissions for the period of time employed prior to date of termination in excess of the pro rata part of the above referred to Fifteen Thousand Six Hundred Dollars ($15,600.00), based on the relationship of the period of time worked to the entire calendar year. For example, if the contract is terminated after the first six months of operation, the Employee would be entitled to one-third (1/3) of all gross general insurance premiums in excess of Seven Thousand Five Hundred Dollars ($7,500.00).

At the close of the business year on December 31st, 1963, an accounting will be had by and between the parties hereto and any sum or sums due by either party to the other party will be adjusted in cash. In the event the gross general insurance commissions exceed, in any monthly period, three (3) times the salary provided in subparagraph A above, for such period, the Employer and the Employee may consider a drawing or drawings by the Employee against the amount provided in this subparagraph B, provided, however, the amount or amounts to be drawn are satisfactory to and approved by the Employer.

3. In determining the gross general insurance commissions for the calendar year 1963 as a basis for payment to Employee under the terms of this contract, all gross general insurance commissions received by the Employer during the said year shall be considered. This shall be true even though such collections are for insurance sold prior to January 1st, 1963. However, premiums for insurance sold during the calendar year 1963 but not collected on or prior to December 31st, 1963, shall be excluded from such figure. Any cancellations or losses during the calendar year 1963 shall be charged against the gross general insurance commissions as used in this paragraph.

4. The Employee understands that it is necessary for him to have an automobile and to use same in his position of employment. All expense of operation, including repairs, supplies, oils, lubricants and other expense connected therewith, together with personal liability insurance in an amount satisfactory to both parties, and for the protection of both parties, with the exception of the first Twenty Five Dollars ($25.00) each month thereof, shall be borne by the Employee. The Employer will reimburse the Employee for the first Twenty-Five Dollars ($25.00) of such expenses each month.

5. The Employee shall give full time to the duties of his posistion and shall not accept employment of any kind during such period from any other person or persons.

6. All business submitted by the Employee must be acceptable to the Employer. It is understood that the Employer maintains a high standing with the companies which it represents and that the right to select the risks submitted, whether such risks be of a nature involving the credit of the person who applies for insurance, the character of such applicant for insurance, the value of the property involved, the type of risk involved, or for any other similar reason, is retained by the Employer. However, the Employer will give careful consideration to any risk submitted by the Employee. The Employer reserves the right to fix the general policies to be followed in the operation of the insurance business and the Employee agrees to conform therewith. The Employee understands that in the conduction of the general insurance business, he must necessarily handle collections and other items connected with any related to the insurance field.

7. Employee will be entitled to hospitalization insurance and other similar benefits furnished to other employees by the Employer.

8. This contract may be terminated by mutual agreement of the parties hereto. It may be terminated by either party be giving written notice to the other party of the failure of such party to comply with the terms and conditions of this contract. Such written notice must be given thirty (30) days prior to the effective date thereof. This contract will be terminated by the death of the Employee, should such death occur during the calendar year 1963. In the event the contract is terminated, an accounting shall be had up to and including the date of termination and any sum or sums due by one party to the other will be adjusted in cash. In the event this contract is terminated prior to December 31st, 1963, or in the event it is completely fulfilled but the parties hereto do not enter into a contract for further employment then, in either of such events, the Employee agrees as a part of the consideration hereof not to compete with the employer in Harrison, Jackson or Hancock Counties, Mississippi, within a period of five (5) years from the date of termination of the contract, for whatever cause the same may be terminated. This agreement not to compete applies equally to the Employee acting in his own capacity or serving as an agent or Employee of another.

Landry worked pursuant to this contract the entire year 1963, and it is...