Traweek v. Shields

• Decision Date: 04 June 1964
• Docket Number: No. 61,61
• Citation: 380 S.W.2d 131
• Parties: M. B. TRAWEEK, Jr., d/b/a Jim Dandy Uniform Supply Company, and Local Uniform Supply Company, Appellant, v. John S. SHIELDS, Appellee.
• Court: Texas Court of Appeals

Page 131

380 S.W.2d 131

M. B. TRAWEEK, Jr., d/b/a Jim Dandy Uniform Supply Company and Local Uniform Supply Company, Appellant, v. John S. SHIELDS, Appellee.

No. 61.

Court of Civil Appeals of Texas, Tyler.

June 4, 1964.

Edmund L. Cogburn, Dow & Dow, Houston, for appellant.

John S. Shields, pro se.

DUNAGAN, Chief Justice.

This is a suit which was brought by the appellant, M. B. Traweek, Jr., d/b/a Jim Dandy Uniform Supply Company, and Local Uniform Supply Company, for a temporary injunction against the appellee, John S. Shields, to enjoin him from the breach of an employment contract, which contained certain non-competitive covenants. At the hearing on temporary injunction testimony was taken and at the close of the evidence the trial court denied the application for temporary injunction. Appellant has perfected his appeal from that ruling.

The purpose of this suit was to enjoin the defendant, John S. Shields, from the violation of the employment contract. The employment contract was executed March 23, 1963, and the pertinent provision of the same reads as follows:

'6. As a part of the consideration for the execution hereof by Employer, the Employee agrees that he will not for a period of one year from the termination hereof (whether this agreement is terminated by Employer or Employee) engage or work in the selling or renting of any products in competition to those now or then being handled by Employer, within a radius of seventy-five (75) miles of Houston, Texas, by calling on or soliciting customers that are being served by Employer, either for himself or for any other person, firm or corporation, and that he will not directly or indirectly, solicit, divert or take away, or attempt to take away any of the customers of Employer.'

The testimony showed that John S. Shields, employed as a route man by Jim Dandy Uniform Supply Company, terminated his employment on August 9, 1963. The testimony of John S. Shields, defendant in this case in the trial court, was that he was employed by Texas Overall Service on the 1st of September, 1963, and handled uniform rentals and industrial towels, soliciting business for the company.

Shields testified that he personally took a contract out and got Galena Park Plumbing Company, a customer of Jim Dandy Uniform Supply Company, signed up with Texas Overall Service in October, 1963, and that he did the same for Bill Raines Humble Station, another customer of Jim Dandy Uniform Supply Company.

The testimony of M. B. Traweek, Jr., plaintiff in this case, appellant herein, showed that a route man such as John Shields was a very important person to his company, handling all personal complaints with the customer and developing a personal relationship with the customers. Appellant further testified that each route man had a six weeks' training period to begin with, with a guaranteed $75.00 a week salary and that the company further had a practice of paying one-half of the cost of a Dale Carnegie course for the route man. The testimony of the appellant further demonstrated the importance of the route man to to the company since he was very familiar with its business and thus had an advantage upon leaving it over a person not previously employed with Jim Dandy in approaching the company's customers.

The appellant further testified that all of his obligations under the contract had been performed and that John Shields was given all the benefits of route men employed by Jim Dandy. Appellant further testified that he would not have signed the contract or employed any route man without the above set forth provision being part of the contract. Appellant further testified that the two accounts, Galena Park Plumbing Company and Bill Raines Humble Station taken away from Jim Dandy by appellee, averaged a total of approximately $80,00 per week which business had substantial value to appellant.

There can be no doubt as to the validity of the contractual provision in question, since its propriety is fully supported by numerous authorities.

The appellant, by his single point of error, says that the trial court erred in refusing to temporarily enjoin the appellee, who clearly had violated his employment agreement not to call on or solicit customers of appellant and not to divert or take away or attempt to take away any of the customers of appellant after terminating his employment with appellant, since such refusal constituted an abuse of the discretion of the trial court.

Appellee has not filed a brief and did not avail himself of oral argument. He has not challenged in any manner the statements in appellant's brief relative to the facts and the record. The Court of Civil Appeals must assume as true all facts stated by appellant in his brief and render judgment in conformity therewith. Rule 419, Texas Rules Civ.Proc.; Gonzales v. Gonzales, Tex.Civ.App., 224 S.W.2d 520 (writ refused); Coates v. Coates, Tex.Civ.App., 355 S.W.2d 260; Rancher v. Franks, Tex.Civ.App., 269 S.W.2d 926; Hartford Fire Ins. Co. v. Owens, Tex.Civ.App., 272 S.W. 611 (writ refused). However, we have checked the references in appellant's brief and find them to be correct.

The appellee did not file any pleadings in this case and consequently the court is not informed as to the appellee's defense, if any, to this cause of action. He was not represented by counsel in the trial court nor on this appeal. He did appear at the hearing in the trial court, cross-examined appellant's witnesses, and was called to the witness stand by the appellant, and testified. Appellee did not call any witnesses to testify nor offer any evidence in his behalf. There is no complaint raised by the appellee that the restraint imposed upon him by virtue of the contract (which he admitted in open court he signed) was not reasonable or that the contract is unenforceable for any reason.

The language, or substantially the same language, used in the above-quoted paragraph of the employment contract involved herein has been upheld in Jennings v. Sheperd Laundries Co., Tex.Civ.App., 276 S.W. 726 (error dismissed); Blaser v. Linen Service Corporation of Texas, Tex.Civ.App., 135 S.W.2d 509 (error dismissed, judgment correct).

Under the customs and usages of modern business, an employee is frequently required to promise, as part of his contract of employment, that he will not engage in a similar or competitive business, either for himself or for another, for a specified period of time after the termination of the contract. 13 Tex.Jur.2d, p. 398, Sec. 189.

In the case of John L. Bramlet & Company v. Hunt, 371 S.W.2d 787 (writ refused n. r. e.) the court said:

'There was a time in our jurisprudence when covenants not to compete were held to be unenforceable because in restraint of trade and contrary to public policy. However, under the customs and usages of modern business practice it is now well established that contracts ancillary to employment involving trades or professions are enforceable, though amounting to limited restraint of trade, where they are reasonably limited as to time and space. Some cases even go so far as to uphold such restrictive covenants, even in the absence of a time limitation, where the agreement is reasonably...