Orkin Exterminating Co. of South Ga. v. Dewberry

• Docket Number: 16441,16453.
• Decision Date: 11 January 1949
• Citation: 51 S.E.2d 669,204 Ga. 794
• Parties: ORKIN EXTERMINATING CO., Inc., OF SOUTH GEORGIA v. DEWBERRY. DEWBERRY v. ORKIN EXTERMINATING CO., Inc., OF SOUTH GEORGIA.
• Court: Georgia Supreme Court

51 S.E.2d 669

204 Ga. 794

ORKIN EXTERMINATING CO., Inc., OF SOUTH GEORGIA v. DEWBERRY.

DEWBERRY v. ORKIN EXTERMINATING CO., Inc., OF SOUTH GEORGIA.

Nos. 16441, 16453.

Supreme Court of Georgia

January 11, 1949

Rehearing Denied Feb. 17, 1949.

Syllabus by the Court.

The employment contract, which formed the basis of the plaintiff's complaint, was void and unenforceable because contrary to public policy, being unreasonable as to territorial limitations contained in a restrictive covenant and otherwise unreasonable. Accordingly, the trial court erred in granting an injunction, enjoining the employee in certain particulars, and in sustaining a demurrer to that portion of the answer which set forth the defense that the contract was contrary to public policy.

Orkin Exterminating Co. Inc. of South Georgia, sought to enjoin James Oglethorpe Dewberry, a former employee, from violating the negative restrictive covenants of an employment contract. The contract, which formed the basis of the complaint and was attached thereto as an exhibit, recited: that the plaintiff company is engaged in the exterminating business, which requires secrecy in connection with its methods and systems and in order to protect the business of the company it is necessary that the names of its customers be kept secret; that the territory known as the cities of Macon, Dublin, Milledgeville, Perry, Jeffersonville, Forsyth, Barnesville, Georgia, and a 75-mile radius of each of these cities, has been solicited by the company through its sales representatives and through advertising mediums, and the company has a substantial amount of customers in this territory; that damages will be sustained by the company if, for a period of one year immediately following the termination of the contract, Dewberry should, for himself or in behalf of any other person, call upon or solicit any customer of the company or use any of the methods and systems employed by the company within the above-described territory. Following the above recitals, the material covenants and conditions of the contract are as follows:

'7. Said employee hereby expressly covenants and agrees, which covenant and agreement is of the essence of this contract, that at no time during the term of this agreement or for a period of one (1) year immediately following the termination of this employment (regardless of whether said termination of this employment is voluntary or involuntary) will he for himself, or in behalf of any other person, persons, firm, partnership, company or corporation call upon any customer or customers, any exterminating, fumigating or termite control service for the purpose of eradicating rats, mice, roaches, bugs, vermin, termites beetles and other insects; nor will he in any way directly, or indirectly, for himself or in behalf of, or in conjunction with divert or take away any such customers of the said company during the term of this employment, or for one (1) year immediately following the termination of this agreement.

'8. Said employee further covenants and agrees that at no time during the term of this employment, or for one (1) year immediately following the termination of this employment (regardless of whether such termination is voluntary or involuntary), will he for himself, or in behalf of any other person, persons, partnership, corporation or company engage in the pest control business or any business engaged in the eradication and control of rats, mice, roaches, bugs, vermin, termites, beetles and other insects within the territory known as cities of Macon, Georgia, Dublin, Milledgeville, Perry, Jeffersonville, Forsyth, Barnesville, Georgia, and a 75-mile radius of each of these said cities; nor will he directly or indirectly for himself, or in behalf of or in conjunction with any other person, persons, partnership, corporation or company, solicit, or attempt to solicit the business or patronage of any person, persons, firm corporation, company or partnership within the said territory for the purpose of selling a service for the eradication and/or control of rats, mice, roaches, bugs, and service now engaged in by the company, nor will the said employee disclose to any person whatsoever any of the secrets, methods or systems used by the company in and about its business.

'9. Said employee further covenants and agrees that he will not, during the term of this employment nor for one (1) year immediately following the termination of this employment (regardless of whether said termination of this said employment is voluntary or involuntary), service contracts and accounts and/or work in the territory known as cities of Macon, Georgia, Dublin, Milledgeville, Perry, Jeffersonville, Forsyth, Barnesville, Georgia, and a 75-mile radius of each of these said cities, for himself, or for any other person, persons, firm, company, partnership, or corporation, directly or indirectly, or in conjunction with any other person, persons, firm, company, partnership, or corporation, selling any kind of pest control service, or any service, items or products for the exterminating and/or control of rats, roaches, bugs, vermin, termites, beetles, and other insects and/or any other things, items and products now handled by or from time to time handled by the said company or any products incidental to the business of the company.

'10. It is mutually agreed and understood that the term of employment shall be for a period of not less than three months after this date, provided the employee faithfully performs his duties in a manner in keeping with this agreement and the rules and regulations of the employer, after which time the said employment may be terminated by either party upon the giving of fifteen days' notice to the other.'

The petition alleged: that the employment contract was entered into on January 6, 1947, and thereafter on May 3, 1948, the defendant resigned his position with the petitioner and, in violation of the provisions of the contract, immediately accepted employment with Wright Pest Control Company of Macon, Georgia, a concern engaged in the pest-control business within the territory embraced in the employment contract; that the defendant acquired, during his period of employment by the petitioner, various trade secrets and methods used in pest control, and had access to the list of customers serviced by the petitioner, and he is now directly engaged in soliciting orders, and attempting to obtain business, form the petitioner's customers in the territory embraced in the employment contract; that the breach of the covenants contained in the contract will cause irreparable damages to the petitioner, the amount of damages being difficult, if not impossible, of accurate computation; and that the petitioner is without a remedy at law.

The petition prayed that the defendant be temporarily and permanently restrained and enjoined for a period of one year, commencing May 3, 1948, from engaging in the pest-control business within the territory embraced in the employment contract, either in behalf of himself or as an agent or employee of Wright Pest Control Company, and from servicing contracts or accounts within the territory embraced in the contract, for himself or for any other person, firm, or corporation, in the selling of any kind of pest-control service or any service, items, or products for the extermination and control of rats, roaches, bugs, and other insects.

The defendant filed an answer which, together with amendments thereto, consists of more than eighty paragraphs. It would be impracticable to even summarize the allegations of the answer; but, briefly, the contentions as made by the answer were: (1) that the contract had been rescinded by mutual consent; (2) that the plaintiff perpetrated a fraud upon the United States and the Veterans' Administration of the United States, in that it did not inform the Veterans' Administration that it was requiring employees, working for the plaintiff under the G. I. Bill of Rights, Servicemen's Readjustment Act, 38 U.S. C.A. § 693 et seq., to enter into contracts which prevented the veteran-trainee from pursuing the trade for which he was being trained; (3) that the contract forming the basis of the suit is void because contrary to the public policy of the United States and of the State of Georgia, and because it tends to defeat the purposes of the act of Congress providing for on-the-job training for veterans; (4) that the contract is unenforceable because the words 'of South Georgia, were added to the signature of Orkin Exterminating Company after the defendant signed the contract; (5) that the plaintiff represented to the defendant and to the authorities who approved the plaintiff as an institution for on-the-job training of veterans that the defendant would be given two years of training; that these representations were false, known to the plaintiff to be false, and were made for the purpose of deceiving the defendant and the authorities; and that the defendant and other trainees, were actually given only about six days of instructions; (6) that the plaintiff cheated and defrauded its customers by requiring its employees to make inspections on the premises of its customers only once a month instead of twice a month as called for in the contracts entered into with its customers.

With respect to the third defense urged, the answer, in substance alleged: that the contract upon which the plaintiff relies is contrary to law, contrary to the public policy of the State of Georgia, and is null and void; that the contract is in restraint of trade, and the terms of the contract are unreasonable and place an unreasonable burden upon the defendant, in that the contract provides that the defendant shall be deprived of his right...