Pierce v. Industrial Boiler Co.

315 S.E.2d 423, 252 Ga. 558, 1984 Ga. LEXIS 773

• Court: Supreme Court of Georgia
• Decided: May 16, 1984
• Docket: 40792
• Status: Published

Opinions

Hunt, Judge.

This is a suit to enjoin a former employee of the plaintiff from violating a restrictive covenant contained in his employment contract.

This suit was brought by plaintiff-appellee, , Industrial Boiler Company, Inc., against defendant-appellant, William Ray Pierce, Jr., while Pierce was employed as a salesman with Industrial Boiler in Thomasville, Georgia. He signed an employment contract which included the following restrictive covenant:

“If this employment is terminated for any cause, employee shall not, for a period of one year after the effective date of such termination, engage directly or indirectly, either personally or as an employee, associate partner, manager, agent, officer or otherwise, or by means of any corporate or other devise [sic], in the boiler manufacturing and sales business, in any capacity held by employee during the term of this employment agreement, within a 120-mile radius of downtown Thomasville, Thomas County, Georgia. For such period of time and within such geographical area employee shall not solicit orders, directly or indirectly, from any customers of employer, or from any customers of its successor, for such products as are sold by employer or its successor, either for himself or as an employee of any other person, firm, or corporation.”

After several years, Pierce quit his job to work as a salesman for Hurst Boiler & Welding Company (located 15 miles from Thomasville). Industrial Boiler brought this action to enforce the previously quoted covenant. After a hearing, the trial court granted a permanent injunction, restraining Pierce for a period of one year “from his employment with Hurst in the capacity of a salesman ... and from accepting employment with any other competitor of Industrial Boiler Co., Inc., as a salesman within 120 miles of Thomasville, Georgia . . .”

Decided May 16, 1984 Rehearing denied June 13, 1984. Whitehurst, Cohen & Blackburn, R. Bruce Warren, for appellant. William U. Norwood III, for appellee.

Pierce appeals, contending: (1) The 120-mile limitation of the covenant bears no reasonable relationship to the sales territory of Industrial Boiler, in that Industrial Boiler sells nationwide and has no regular customers within a 120-mile radius of Thomasville. (2) The covenant is overbroad, as it prohibits an employee from working in the boiler manufacturing and sales business “in any capacity” with Industrial Boiler.

For the following reasons, we disagree with these contentions and, therefore, affirm.

1. The 120-mile limitation is reasonable because it pertains to the territory where Pierce formerly was employed and serves to protect the employer’s legitimate interest in the investment of time and money in developing the employee’s skills. See Barry v. Stanco Communications Products, 243 Ga. 68 (252 SE2d 491) (1979) and Beckman v. Cox Broadcasting Corp., 250 Ga. 127 (296 SE2d 566) (1982). Compare Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (236 SE2d 265) (1977) and cits.

2. The covenant is limited to “the boiler manufacturing and sales business in any capacity held by employee.” As Pierce formerly was employed as a salesman of boilers, this activity alone is prohibited by the covenant. Cf., Dixie Bearings v. Walker, 219 Ga. 353 (133 SE2d 338) (1963).

Judgment affirmed.

All the Justices concur, except Smith and Bell, JJ., who dissent. Weltner, J., disqualified.