This is аn appeal from an order granting a temporary injunction. Appellant, a photographer and former employee of appellee, was rеstrained pending a trial on the merits from engaging in the business. of taking, making, developing, furnishing, soliciting and selling photographs and pictures within the City o'f Dallas and the surrounding territory within a radius of 100 miles.
The parties entered into a written employment contract dated Sept. 1, 1945 which provided that appellant should act as manager and photographer of appellee’s studio for a term of three years. The controversy in this case revolves around this paragraph in the contract:
“VI. As an inducеment to Employer to make this contract, manager covenants that he will not in the City of Dallas or within the surrounding territory within a radius of one hundred miles of the City of Dallas, at аny time within three (3) years from the expiration or termination of this contract, engage himself, or otherwise assist anyone engaged, directly or indirectly in the business of taking, making, developing, furnishing, soliciting, or selling photographs or pictures, or any business similar to the business now being conducted by Employer in said Studio situated in Dallas, Texas.”
In 1949 a written extension agreement covering a term of one year was executed by the parties, which extension agreement provided that appellant should act аs manager and photographer within an area comprising that part of the State of Texas situated north of a line drawn from Waco, Texas, due east to the Louisiana State line, and from Waco, Texas, due west to the New Mexico line. From time to time other written extension agreements, including a few amendments, were entered into by the parties, the last covering a period of one year beginning Jan. 1, 1951 and terminating Dec. 31, 1951. This last extension agreement amended the original 1945 contract so that appellant was made manager and photographer and was also placed “in complete charge of the entire road operations of Gittings.” After the expiration of the last *312 extension agreement appellant continued to work for appellee without- entering into a written cоntract. Over the years appellant’s salary had been increased until he was 'being paid $12,000 per year when he left appellee’s employment March IS, 1953.
There is evidence in the record to the effect that appellant intended to open a studio in Dallas soon after leaving appellee’s employment and that he intended to do road photography from such studio; that he so told several of appellee’s other employees and offered them induсements to leave ap-pellee and go with him; that he also communicated with appellee’s business contacts, known as “sponsors,” in Oklahoma 'City, and Corsiсana, Texas, with a view to having them act as “sponsors” for him instead of appellee; that over a period of years while acting as manager and road photographer, appellant became acquainted with appellee’s customers in Dallas and elsewhere in his territory and as appelleе’s employee had ingratiated himself with appel-lee’s customers and business friends.
The record also contains evidence that appellee had spеnt large sums of money advertising in newspapers and over the radio; that appellee’s business catered to customers over even a larger area than that covered by a hundred mile radius from Dallas; that as a result many customers came to Dallas from other cities, and that part of appel-lee’s business was road photography—an operation in which appellant, or one of appellant’s subordinates, working through “sponsors” in various towns, went about the country tаking pictures. It will be observed that appellant was in complete charge of the road operations as well as activities at the Dallas studio.
Provisions suсh as the one in controversy here are generally upheld if. they are reasonable and appear to -be necessary for the protection of the employer’s business. Houston Credit Sales Co. v. English, Tex.Civ.App.,
Appellant’s first point on appeal is that the written contract and extensions thereof had expired prior to termination of appellee’s employment, hence the controversial provision is not enforceable. The last written extension of the original contract expired December 31, 1951. The paragraph in question binds appellant for a period of three years after its expiration. Such three year period would extend to December 31, 1954. We overrule appellant’s first point.
Appellant’s second point is to the effect that the area covеred by the injunction—a hundred mile radius from Dallas— is too broad. It has 'been held that the territorial limit is reasonable if
it is
confined to the territory in which the employer keeps his market, or carries on his business. Thomas W. Briggs Co. v. Mason,
In the case before us the territory assigned to the appellant under the terms of his contract was substantially the entire northern half of the State of Texas. He was placed in entire charge of road operations for. appellee, and went to numerous cities in North Texas. He had tаken portraits in Sherman, Denison, Corsicana, and Oklahoma City. Appellee’s advertising activities covered all the named territory and even more. Under these circumstances we consider that the territorial limits named in the order were not too broad. We overrule appellant’s second point.
Appellant’s third point is that thе injunction is too broad in that it prohibits, appellant from engaging in business activities in which appellee is not engaged. In particular, appellant points out thаt the order restrains him from eng-aging himself, or otherwise assisting anyone engaged directly or indirectly in the taking, making, developing, furnishing, soliciting, and selling of "photographs and pictures” (empha *313 sis supplied), though appellee claims to be only a portrait photographer. We have examined the rеcord and do not find any testimony showing that appellee’s business operations extend into other fields of photography. A portrait has been defined as “a likеness of an individual produced by art, as in oils, watercolor, crayon, engraving, photography, or sculpture; especially, a painting representing the face of a real person, usually with more or less detail of the figure; a picture of a person.” Funk & Wagnalls New Standard Dictionary (1941). From the above definition we cоnclude that a portrait photographer is one who takes photographs of persons. The purpose of the injunction is, of course, to restrain aрpellant from entering into a business in which he competes with his former employer. And the injunction should not go further than is necessary to accomplish that purpose. We are of the opinion that the temporary injunction should be modified to restrain appellant from engaging himself or otherwise assisting anyone engaged, direсtly or indirectly in the taking, making, developing, furnishing, soliciting and selling photographs and pictures in the nature of portraits.
It should be ¡borne in mind that this is an appeal from an order granting a temporary injunction. The order of the trial court should not be reversed unless an abuse of discretion is shown. Texas Foundries v. International Moulders, etc., Tex.Sup.,
The order of the trial court is modified to restrain appellant from engaging himself or otherwise assisting anyone engaged directly or indirectly in the business of taking, making, developing, furnishing, soliciting and selling photographs and pictures & the nature of portraits within the City of Dallas and the surrounding territory within a radius of one hundred miles.
As so modified, the judgment of the trial court is affirmed.