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242 Ga. 380

249 S.E.2d 65

Browning v. Orr

Supreme Court of Georgia

Decided October 17, 1978

Supreme Court of Georgia · decided 1978-10-17

Relies on Howard Schultz & Associates of Southeast, Inc. v. Broniec · Richard P. Rita Personnel Services International, Inc. v. Kot

Good law ✅— No negative treatment on recordhow we know

Decided 1978-10-17

How this case has been cited

Cited by 8 later decisions — most recently March 2001

4 state decisions

401978198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Per curiam.

¶1 This appeal is from the dismissal of a complaint for injunction and. other relief.

¶2 Browning sued Orr and her employers, alleging: Orr entered into a contract with Browning to solicit orders for his products. The contract provided: "In the event of cancellation, representative shall not solicit orders for products similar to or competitive with Pioneer’s products within the counties enumerated in paragraph 1 for a period of twelve months following the effective date of cancellation. Representative further agrees that for said period of twelve months he shall not personally, or as a partner, or as a member of management of another organization participate in the manufacture or distribution of products similar to or competitive with Pioneer’s products, within said counties.” Orr canceled *381 her employment contract and has accepted employment with the other defendants to sell products in competition with those of Browning in violation of the quoted covenant.

Argued September 18, 1978 Decided October 17, 1978. Wayne F. Browning, Jr., for appellants. Donald A. Weissman, Katz, Paller & Land, James Killough, for appellees.

¶3 The trial judge held that the contract "is overly broad and unreasonable by reason of the limitations on employment imposed by the second sentence of paragraph 11 which would prohibit defendant Orr’s employment in the 'manufacture’ of competing products in the defined area.” The complaint was dismissed for failure to state a claim.

¶4 The appellant Browning asserts that the court erred in finding that the second sentence of the covenant not to compete is overly broad and unreasonable; and that, even if unreasonable, the court should have considered the first and second sentences as separate covenants.

¶5 The second sentence of the quoted provision of the contract imposes a greater limitation upon the employee than is necessary for the protection of the employer because the employee may not "participate in” the "manufacture” or distribution of products similar to, or competitive with, the employer’s products, which would prevent her employment in capacities dissimilar from her employment with the appellant, the soliciting of orders. Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 184 (2) (236 SE2d 265) (1977).

¶6 This court has previously rejected the "blue pencil theory of severability” of an unreasonable restriction in an employment contract. Rita Personnel Services v. Kot, 229 Ga. 314 (191 SE2d 79) (1972).

¶7 The trial judge did not err in finding that the covenant not to compete was illegal, and in dismissing the complaint for failure to state a claim.

¶8 Judgment affirmed.

All the Justices concur.
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