Purcell v. Joyner
| Decision Date | 06 September 1973 |
| Docket Number | No. 28056,28056 |
| Parties | , 1973-2 Trade Cases P 74,856 David W. PURCELL v. George W. JOYNER et al. |
| Court | Georgia Supreme Court |
Adams, Adams, Brennan & Gardner, Richard J. Harris, Savannah, for appellant.
Pierce, Ranitz, Berry, Mahoney & Forbes, Morton, Forbes, Connerat, Dunn, Hunter, Houlihan, Maclean & Exley, Edward C. Minor, Arnold Young, Ralph Bowden, Albert Sadler, Savannah, for appellees.
Syllabus Opinion by the Court
The appellant's complaint basically alleged that the appellee Joyner was hired under an employment contract whereby Joyner would not engage in the business of appraising vehicle damage in a certain described territory for a period of three years after termination of employment with the appellant Purcell; that the appellee Joyner breached said contract when he terminated his employment with Purcell and went to work for Gay & Taylor doing appraisal work within the territory prohibited by the employment contract. The complaint sought to enjoin Joyner for a period of three years and to recover damages from Gay & Taylor for the malicious inducement of Joyner to breach the contract. Both defendants filed answers, and Joyner filed a counterclaim for damages based on the harassment he had suffered. Upon the trial of the case and at the conclusion of the evidence the trial court granted the motion of each defendant for a directed verdict. No action or ruling was taken on the defendant Joyner's counterclaim for damages. Held:
1. The appellee Joyner's motion to dismiss the appeal on the ground that his counterclaim is still pending in the trial court is denied. At the conclusion of the plaintiff's evidence the jury, at the direction of the court, returned its verdict against the plaintiff and judgment was entered in favor of the defendants (appellees). The appellee Joyner did not pursue his counterclaim by asking the trial court to proceed with the trial of the counterclaim or to defer the direction of the verdicts until Joyner could proceed with his evidence. The trial proceedings thus ended and the jury was discharged. The law favors and end to litigation and a final settlement of cases, and under the facts of this case we must conclude that the appellee Joyner abandoned his counterclaim and it is therefore no longer pending in the trial court.
2. The covenants involved in this appeal are contained in an employment agreement between the employer Purcell and the employee Joyner.
Joyner terminated his employment as an appraiser on the last of June 1971, and went to work for appellee Gay & Taylor, Inc., as an adjuster on the first of July, 1971.
The contract, signed February 2, 1970, provided that Joyner agreed to (1) not engage in physical damage appraisal for a period of three years directly or indirectly in 16 Georgia counties and one county in South Carolina, (2) not to accept any business or item of business in physical damage appraisal in the 16 Georgia counties and one county in South Carolina for a period of three years, from any client or agent of any client or forwarder of any client from whom employer has received or will receive any such business or item of business during the term of the employment.
Georgia law provides that contracts in restraint of trade or tending to lessen competition are against public policy and therefore void. Code § 20-504; Georgia Constitution, Art. IV, Sec. IV, Par. I (Code Ann. § 2-2701).
Covenants against competition contained in employment contracts are considered in partial restraint of trade and are to be tolerated only if strictly limited in time and territorial effect and otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the employee. Orkin Exterminating Co., Inc., of South Georgia v. Dewberry, 204 Ga. 794, 51 S.E.2d 669; Rakestraw v. Lanier, 104 Ga. 188, 30 S.E. 735.
Notwithstanding the severability clause contained in the contract, if the contract contains illegal and unenforceable clauses the covenant must fall because this court has refused to apply the 'Blue-pencil theory of severability' in such circumstances. Rita Personnel Services International, Inc. v. Kot, 229 Ga. 314, 191 S.E.2d 79.
If, upon examination, the restraints are found to be larger or more stringent than necessary for the protection of the employer they must be struck down. Rakestraw v. Lanier, supra.
The covenants in the contract here involved must be examined with these considerations in mind. The contract named no salary and no term of employment but prohibited Joyner from engaging in or accepting any property damage appraisal work in Bibb, Bulloch,...
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