Union Transfer & Storage Co. v. Greve

• Decision Date: 27 July 1939
• Docket Number: No. 10961.,10961.
• Citation: 131 S.W.2d 796
• Court: Texas Court of Appeals
• Parties: UNION TRANSFER & STORAGE CO. v. GREVE.

131 S.W.2d 796

UNION TRANSFER & STORAGE CO. v. GREVE.

No. 10961.

Court of Civil Appeals of Texas. Galveston.

July 27, 1939.

Rehearing Denied September 28, 1939.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit for injunction by the Union Transfer & Storage Company against J. G. Greve. From an order denying an application for a temporary injunction, plaintiff appeals.

Affirmed.

Irving G. Mulitz, of Houston, for appellant.

Vinson, Elkins, Weems & Francis, of Houston (W. S. Elkins and C. M. Hightower, both of Houston, of counsel), for appellee.

GRAVES, Justice.

This appeal, brought to and advanced in this court pursuant to R.S.Art. 4662, is from an order of the 80th District Court of Harris County, entered after a full hearing on the facts from both sides, refusing, at appellant's application, to temporarily enjoin and restrain the appellee from engaging in the transfer and storage business, or a business of a similar line, in Houston, Texas, either for himself or for another person, firm, or corporation, for a period of five years from and after November 1 of 1938, as for an alleged violation of the terms of this preexisting contract of employment between the parties, which was shown to have been terminated by the resignation of the appellee from such employment on November 1 of 1938, to-wit:

"State of Texas

"County of Harris.

"This agreement entered into by and between Union Transfer & Storage Co., its successors and assigns, hereinafter designated `Employer', and J. G. Greve, hereinafter designated `Employee'.

"1. For and in consideration of employment on a monthly basis by employer, such employment to consist of any duties which employee may be called upon to perform in connection with the general transfer and storage business including packing, cartage, storage, and/or any services rendered by employer, employee agrees that in the event his employment is terminated for any reason, he will not injure or attempt to injure employer's business and/or solicit business from employer's customers by communicating with, or otherwise getting in touch with employer's customers, directly or indirectly, in any way or manner for a period of five (5) years after such employment is terminated.

"2. Employee further agrees that in the event of termination of his employment for any reason, he will not engage in the same or similar line of business in the City of Houston, either for himself or another person, firm, or corporation, for a period of five (5) years following termination of his employment.

"Executed this 25th day of February, A. D. 1931.

                          "Union Transfer & Storage Co
                          "By L. G. Riddell, President
                          "(Signed) J. G. Greve."
                

As is obvious from preceding recitations, the declared-upon violation thereof occurred seven and a half years after the employment-contract between the parties was made, and it is not charged, nor could it successfully have been under the undisputed evidence received upon this trial, that the appellee had ever failed to live up to any of his undertakings detailed in paragraph 1 of that contract; the only legal grievance advanced by appellant as a basis for the injunctive-relief it sought was that growing out of the second paragraph, whereby the appellee was "Not to engage in the same or a similar line of business in the City of Houston, either for himself, or another person, firm, or corporation, for a period of five years following termination of his employment."

As indicated, the learned trial court refused the prayer for the sought-for writ, after full hearing without a jury upon evidence presented for both parties, but did not file findings of fact, nor were any requested by either side; wherefore, all reasonable presumptions in favor of there having been sufficient evidence to sustain the trial court's judgment will be indulged.

So that, this appeal presents the ordinary instance of where, on a review of a trial court's action in refusing a writ of temporary injunction, the sole question is as to whether or not the record discloses an abuse of a sound judicial discretion: 24 Tex.Jur., p. 313, par. 253, and cited authorities.

After a careful review of this record, inclusive of the statement of facts, it is determined that no such abuse has been made to appear in this instance; upon the contrary, that the evidence supports the action of the court below, in that, as applied to the attending circumstances, this declared-upon restrictive covenant was shown by the testimony to have merely amounted to an attempt by contract to interfere with the right of the appellee to earn his livelihood; further, that its enforcement was neither reasonable as affected the situation of the appellee, nor necessary for the protection of the appellant's business or good will, nor did it in any sense constitute a security for any right appellant had parted with for a consideration; hence the visitation of the declared-upon...