Redd Pest Control Co. v. Heatherly, 42774

• Decision Date: 04 November 1963
• Docket Number: No. 42774,42774
• Citation: 157 So.2d 133,248 Miss. 34
• Parties: REDD PEST CONTROL COMPANY, Inc. v. Thomas L. HEATHERLY.
• Court: Mississippi Supreme Court

Page 133

157 So.2d 133

248 Miss. 34

REDD PEST CONTROL COMPANY, Inc. v. Thomas L. HEATHERLY.

No. 42774.

Supreme Court of Mississippi.

Nov. 4, 1963.

Mitchell, McNutt & Bush, Tupelo, William A. Bacon, Jackson, for appellant.

W. P. Mitchell, Tupelo, for appellee.

GILLESPIE, Justice.

The complainant-appellant, Redd Pest Control Company, Inc., filed its original bill against defendant-appellee, Thomas L. Heatherly, in the Chancery Court of Lee County. An injunction was sought to prohibit Heatherly from engaging in the pest control business anywhere in the State of Mississippi in competition with Redd for a period of two years in accordance with the terms of an employment contract between the parties. The chancellor heard the case and declined to issue the injunction on the sole ground that the contract was unreasonable because the area in which Heatherly would be restricted by the terms of the contract was unreasonable. The chancellor found that in all other respects the contract between the parties was reasonable and lawful.

Heatherly had been working for Redd in and around Tupelo, Lee County, Mississippi, where he had lived all his life, for about two years when on February 5, 1960, Redd requested that Heatherly sign the contract involved in this suit. It was the policy of Redd to require all of its employees to sign non-competitive contracts, but through oversight Heatherly had either not signed a contract or it had been mislaid. Heatherly was told that he would be discharged if he did not sign the contract, and, according to his testimony, Heatherly signed because he did not believe the contract was valid and he did not consider it 'worth a nickel.' On June 11, 1962, Heatherly was discharged for cause.

The pertinent parts of the contract are as follows:

'3. Said Redd agrees to teach and train said employee in the control of rats, vermin, roaches, ants, household pests, stored products pests, agricultural pests, and to further teach and train said employee in the treatment of properties and products for the control of said pests and in the conduct of its business methods as established by Redd.

'4. Said employee covenants and agrees that in the event of the termination of his employment by said Redd hereunder for any reason whatsoever, he will not for a period of two years from the date of such termination engage in, accept employment from, become affiliated or connected with, directly or indirectly, or become interested in, directly or indirectly, in any way in any business within the State of Mississippi similar or of a like nature to the business carried on by said Redd wherein said employee has been trained as hereinbefore set forth, the parties hereto recognizing irreparable damage will be done to said Redd thereby in the event of the breach of this covenant herein made by said employee, and covenant and the hereinbefore mentioned training being consideration for this contract. It is agreed that in such event Redd shall be entitled, in addition to any other remedies and damages available, to seek injunctive relief to restrain any violation hereof by said employee, his partners, agents, servants, employers and employees and all persons acting for or with him, and the said employee does further covenant and agree to save harmless said Redd from any and all liability arising from the invoking and/or resorting to this right.

'5. Said employee represents, acknowledges and admits that his experience and capabilities are such that he can obtain employment in business other than that engaged in by said Redd and that he is fully capable of earning a livelihood independently of the pest control business and that his employment in or out of his knowledge of the pest control business is in no way essential to earning a livelihood and an enforcement of a remedy by way of injunction will not prevent him from earning a livelihood.'

Redd is engaged in the pest control business throughout the State of Mississippi and operates in every county. Heatherly had no experience in the pest control business prior to his employment by Redd. The pest control business is highly competitive and there are about fifteen firms whose services are available in the Tupelo area, and many such firms operate throughout the state. The chancellor found and the record shows without dispute that enforcement of the contract involved in this suit would not injure the public. Redd does considerable research in methods and means of controlling pests, and this information is promptly furnished its employees. Redd holds schools and seminars periodically for instruction of its employees to the end that they may better serve Redd's customers. The research done by Redd also enables it to better and more effectively serve its customers, but the chancellor found that no secret formula or trade secrets as such were imparted to Heatherly or Redd's other employees. Proof showed that basically all pest control firms use the same formulas and these formulas are generally known. Heatherly was trained by Redd in the pest control work and was furnished information and the know-how for best results in this work.

Heatherly worked in Tupelo and within a radius of fifty miles thereof as service man for Redd and had regular and close contact with Redd's customers whom he serviced. Heatherly...