HAMILTON, Chief Justice.
Appellant, Leroy Spinks, doing business as Spinks Tool & Supply Company, sought an injunction to restrain appellee, J. A. Riebold, from engaging in the competitive business of that of appellant, on the ground that appellee had breached his employment contract. The case was tried to the court without a jury, and the relief sought by appellant was denied.
In September 1953, appellant and appellee entered into a contract of employment whereby appellant agreed to employ appellee as a salesman, selling merchandise,
The trial court, in its Findings of Fact and Conclusions of Law, found that the plaintiff was suffering damages as the result of the competitive business carried on by appellee, and that such damages were and would be very difficult to ascertain. The trial court further found that the appellant's business was principally confined to seismographing and core bit drilling portion of the petroleum industry, which was a highly specialized segment of said industry; that the potential customers in this segment of said industry were exceedingly limited, and that the continuity of appellant's business was dependent upon appellant's and his employees' personal contact with the customers and potential customers, and that the appellant had complied with the terms of the contract in every respect.
The trial court held that the restrictive covenant in the contract, which would prohibit appellee from entering a competitive business within the states of Texas, Oklahoma and New Mexico within five years from termination of employment by appellant, was unreasonable, both as to time and extent of territory covered, and could not be enforced because the contract was void.
Because of the opinion of our Supreme Court, in the case of Lewis v. Krueger, Hutchinson and Overton Clinic, 153 Tex. 363, 269 S.W.2d 798, 800, we cannot agree that the trial court was correct in the conclusion reached. It is our opinion that contracts of employment containing restrictive covenants, such as we have before us, will not be declared void because said covenants are unreasonable as to time, or as to the extent of territory covered, or unreasonable as to both time and territory. The Court specifically said, in that case, that it was not making a new and different contract for the parties, but said that "it would hardly be doing violence to the established principles to hold that the restriction is merely void or unenforceable with respect to that portion of the time beyond what the court considers reasonable."
The question before us, it seems, is not whether or not the contract is valid, but as to what extent the court will aid the appellant in the enforcement thereof. The appellant contends that the trial court was in error in holding that the five-year provision was unreasonable. We are inclined to agree with appellant, in view of the findings of the trial court with reference to the highly specialized nature of the business in which appellant was engaged, that the five-year provision is not unreasonable, and that to grant his request for injunction for that period of time would not be unreasonable. Periods of five years and ten years have frequently been upheld in the Texas courts: Martin v. Hawley, Tex.Civ. App., 50 S.W.2d 1105; Latham v. Butler, Tex.Civ.App., 17 S.W.2d 1083.
The case at hand not only involved a claimed unreasonable restraint in point of time, but also a claimed unreasonable provision as to area covered. The evidence showed that appellant's business and appellee's covered territory in all of the three states of Texas, Oklahoma and New Mexico. However, the territory in which appellant was active comprised only the Panhandle of Oklahoma, southeastern New Mexico, and the area of the Permian
The trial court in the instant case should have granted the injunction, but confined it to the territory which it found was actually covered by the appellee in his work for appellant.
The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.