*1 Hamlin, ing must be of of Zeb the elements of undue influence the mental condition satisfactory convincing testator, the contestants reasonably including equally he was they must not be to the effect that character and who testified appellants’ Accordingly, sistent the absence the exercise sound mind. Daniel, such influence. 386 S.W. Points 3 4 are overruled. Winn refused, 1965, writ (Tex.Civ.App.) 2d 293 trial court affirmed. Judgment of the n. e. r. this case shows Mr. The evidence in strong
Hamlin to be a character man conducting and one his own accustomed rec business. There no in the evidence us, or circumstan ord before either direct tial, showing Murry Bryant exercised Hamlin
or exerted influence Zeb over testamentary any way that influenced his CORPORATION, Appellant, specific acts. There is no evidence thing Bryant Murry act or did which At induced Mr. Hamlin to make will. al., COMPANY et The TRIPLETT Appellees. most, Bryant had the it is shown that opportunity to exert influence Ham No. 14465. lin had he chosen to do so. This is not suf Appeals Court of Civil of Texas. ficient to show undue influence. San Antonio. The exertion of influence that Jan. 1966. “undue” cannot be inferred alone from Rehearing Denied Feb. opportunity, there but must be some evi dence, circumstantial, direct or to show that only present
influence was not but that respect was in fact exerted to the execution of Rother- the testament itself. Duncan, supra.
mel v. There is no such opinion evidence here. In our the evidence wholly in this case fails to meet the test re reasons, quired of our courts and for these appellants’ we overrule contentions raised in their Points of Error Nos. 1
There remains be considered and dis- posed appellants’ Points 3 and
There can no doubt in this exist sufficiency case about the of the evidence justify Special the submission of Issue testamentary capacity. No. 1 on The evi ample of said dence was for the submission support jury’s issue and to answer thereto, and from the record as a whole contrary great pre weight to the
ponderance King’s In re evidence.
Estate, 662, 244 150Tex. S.W.2d 660. testimony of the eleven witnesses concern- *2 Baskin, Jr., D. Richard E. Gold- James
smith, Antonio, appellant. San Maverick, Gochman, An- Tynan & San tonio, appellees.
MURRAY, Chief Justice. Corpora-
This suit was instituted SCM tion, permanent in- seeking temporary junction Triplett, Richard against Max J. corpo- Ritch, Triplett Company, a and The pur- by Triplett for the organized ration pose competitive engaging in a business Corporation. engaged SCM SCM selling the business of SCM supplies used paper machines and and other sought an ac- such machines. also SCM counting damages. evidence; court, hearing
The trial
after
temporary injunc-
overruled the motion
appeal.
prosecuted
tion and
has
parts.
Appellant’s brief is divided into two
part
common-law
The first
relates to the
prior
February
em-
by former
Sometime
rule of unfair
compensation
new
employer,
form of
ployees with their
decided
former
apply to
appel-
managers,
would
for its sales
which
it is contended that all three
made a
been
engaged
as he had theretofore
lees were so
in violation
compen-
competi-
plans
manager.
rule
sales
new
common-law
unfair
A, B,
of an
Plans
and C. Written
Part
relates
the breach
sation were
tion.
two
*3
plans,
in bulletin
Triplett
printed
in
new
employment
signed by
contract
notice of such
by
man-
form,
in busi-
to all sales
engage
he covenanted not
was mailed
which
to
28,
period
agers, including Triplett,
January
employer
his
a
of
on
ness
for
contract,
employ-
March,
em-
1965,
new
six months after termination of
1965. In
a
ment;
B
the
any
provisions
if there
violation
Plan
and
bodying
“and
shall be
the
of
during
period,
employment,
said
then
was mailed
thereof
six-month
usual terms of
the new
period
(6) Triplett,
six
he
said
shall be extended for
but
refused to execute
Triplett
this new
after
such violation.”
testified that
months
cessation of
contract.
plan
pay
financial disaster
went to work as a salesman
of
would mean a
Antonio,
1965,
Texas,
January
April 20,
Triplett re-
in
on
him.
SCM San
On
1, 1963,
con-
and en-
signed
signed
manager
time
sales
for SCM
at which
he had
as
in
on
containing
following negative
the
tered business
with SCM
tract
26,
April
covenant:
or about
during
your
agree,
period
“You
of
the
approaching
questions
In
the
raised
employment by
Company,
the
not to
herein,
light
must view the record in the
we
any
engage
activity
business
which
by the
taken
most favorable to the action
may
directly
indirectly
or
be
or
com-
court,
a tem
a refusal of
trial
petitive
Company.
37,
with that of the
You
Tex.Jur.2d,
porary injunction.
In 31
§
agree not
em-
engage
further
or be
determining the cor
it is stated: “In
relation,
any
ployed
capacity
or
the
action
rectness of
trial court’s
period
(6)
six
the
of
months after
injunc
granting
denying
or
your employment with
termination of
tion,
in the
will be considered
the evidence
effected,
Company,
in the
the
however
successful
light most
favorable to the
selling photocopy equipment
business of
Tex.Civ.App.,
Lee,
359
party.” Lee v.
supplies
boundary of
State,
and
within the
654;
Tex.
Red Devil Club v.
S.W.2d
any territory
you
in which
shall have
Civ.App.,
Southwestern
307 S.W.2d
Company during
for the
the
Dalhart,
worked
Tex.
City
Tel. Co.
Associated
v.
period
year
preceding
(1)
of one
next
Civ.App.,
the termination hereunder, if any and vio- there shall a tem granting The during lation said six-month thereof sound porary injunction addressed to the period, period then be ex- said shall his deter judge, of the trial and appeal on (6) for six cessa- mination will be disturbed tended abuse is shown. unless a clear of discretion of such under- tion violation. Such Tex.Jur.2d, p. 89. Southwest 31 taking photocopy equipment to sell Duncan, Research, Inc., 160 Weather supplies by shall be enforceable General 327 S.W.2d Dallas Tex. legal process.” or other Helpers Drivers, Warehousemen Wamix, Dallas, Inc. of Thereafter, were four consecutive contracts parties containing the by signed these each contract negative The last above covenant. contract, by parties the by parties signed signed on The
agreed the in ef- the March March arose, feet at the time the difficulties herein repair worked for as a and mainte provided that it could be terminated at nance man on these machines.
time by party either “on notice written to tends list of that this customers was not a the right other.” SCM did not exercise easily trade secret because was ascer terminate this by contract at time. The telephone tained calls to houses business might trial professional court well found from County. have the offices in Bexar change plan evidence that employed testified that he had payment by “Kelly Girls,” SCM was by a breach this con- who the aid of Chamber oper- tract under which parties telephone were list directory Commerce ating. It is well settled were law a former able to secure a not only list of employer negative machines, cannot enforce a cove- location SCMof but nant employment by in a contract of many tem- machines sold other firms. porary injunction where it has breached trial right court believe this *4 Langdon Progress Laundry testimony contract. v. impliedly and to that the find Co., Tex.Civ.App., & Cleaning readily 105 list of S.W.2d SCM customers was ascer ; (wr. ref.) by anyone, 346 155 A.L.R. tainable and was therefore
a trade or business secret. There are some competitors nine engaged in same busi the provided the If a had ness County, as SCM in Bexar and two of change wage rate, the of the result would be them, Allen Goldsmith and Vernon Alien- opposite Langdon that in to the case. Na caster, they testified that the location knew Summers, Corp. tional Linen Service v. of all of the SCM sold in Bexar machines Tex.Civ.App., 251 We there S.W.2d 795. County, but that it took trouble some and fore conclude that the court did not trial err expense considerable to this list. secure temporary injunction in the based Appellant among Hyde has cited cases, them on negative this covenant. Corporation Huffines, 566, 314 v. 158 Tex. brings This 763, us to consideration of a K. & and & G. Oil Tool Service whether trial in refusing Service, the court erred Fishing Co. v. G. & G. Tool 158 temporary injunction appellant, a 594, 782, holding 314 S.W.2d in effect against Ritch, both and based company protection that a was entitled to competi the common prohibiting law unfair employees using former its trade by employees tion former their former they in secrets which had learned about employer. engaged fidence, SCM was in the busi each something but in of these cases selling machines, photocopy quite of ness different from a of that list customers paper supplies and other and used in those readily could a be obtained from Chamber assigned machines. area of list telephone directory Commerce and County sixty was Appellant Bexar and other South was the involved. also cites cases counties, Texas but SCM has stated that if of Corporation Apex Copy System, v. sixty-one county Inc., Court decides May 21, 1965, that the decided in the State unreasonably large territory,
area is an
then
yet published,
New York and not
and
and in that event it
the temporary
Country
Service,
asks that
Town &
House & Home
Newbery,
554,
be confined
to Bexar Coun
Inc. v.
3 N.Y.2d
170 N.Y.S.
ty. Appellant
328,
contends
list
cus
2d
junction. very good A question might There statement was no but that applied well here is in Haut v. knew list because he had sold found machines, Rossbach, Chancery but six of these and Ritch Court New un 227, N.J.Eq. 77, doubtedly Jersey, 15 knew this list he 128 A.2d also because had
587
and
Trade,
cleaning
dyeing
did
own
Kronstein
Regulation
found
Lewitter
608,
it done
a wholesaler.
Miller,
follows:
reads as
business.
cleaning
in the window
general
established
“The
rule well
must
having
Everyone
show windows
that,
prohibited by
valid con-
engage
unless
probably
clean
and will
them
may properly
tract,
employee
a former
if
professional
cleaner
window
employer,
customers
his late
enough
sell to
the work well
latter will do
case,
him. Salomon v.
cheap enough.
In the Zubrin
379;
Hertz,
400,
N.J.Eq.
2 A.
New-
selling
40
complainant
engaged in
Gross,
v.
Cleaning
Dye&
ark
Works
De-
liability insurance.
automobile
789; Maas &
N.J.Eq.
128 A.
became
fendant,
employee,
97
former
Walker,
N.J.Eq.
100
broker,
Co. v.
Waldstein
at lib-
insurance
an automobile
275; Id.,
N.J.Eq.
A.
102
135
complainant’s
erty
customers.
solicit
Adler,
101
140 A.
Lewitter v.
prospect
Every
owner was
automobile
N.J.Eq.
defendant,
137
Bond Electric
A.
complainant
both
Keller,
A.
Corp.
N.J.Eq.
do'
many
owners
although
automobile
Zubrin,
341; Automobile
Club
carry insurance.
N.J.Eq.
By exception
to the Vice Chancellor applied in. case, Backes has been Chancellor Gross observed that there are case, Exterminating v.Co. one Abalene cases where have interfered to courts *5 Oser, N.J.Eq. 739. 5 A.2d protect ‘against the owner of a business Complainant of ex- was the business invasion list and route customers pests. rodent solicitors, terminating insect and by former drivers and where The held that information court the customer latent or the field complainant’s, addresses of names and potential.’ by an patrons, acquired rule, general “The and not the ex- complainant’s property employee, was applies, ception, protected by injunction. the former em- where which would be availa- ‘It was information that was ployer is a or wholesaler manufacturer readily ble or could be obtained jobbers dealing or retail mer- with public any individual.’ other chants. The of the customers names Buchanan While Vice Chancellor everyone are not a trade secret disapproves opinion Lewitter v. buy they The knows from someone. Adler, supra, I think cases do Maas, Salomon, and Bond & Waldstein Likewise, owners, examples. espe- cases property Electric are All conflict. complainant where the sells members cially large buildings whose have those class, readily of a ascertained even windows, have must windows their buy do not though some of the class cleaned, just as all automobile owners anybody. services or from like articles potential buyers liability are insur- Cleaning Dyeing & Thus the Newark ance; while, hand, most other Company awas wholesaler. Defend- in- property do from owners not suffer knowledge ant’s the names of the sects to such an extent as and rodents customers, through company’s gained require the service an extermina- employment it, by was not consid- such tor and the ones who do need secret, any ered a trade since inter- service, A not advertise the fact. do compile person readily could a list ested compiled prospects list of such can be dyers, although retail cleaners and expense. Here is at considerable ignorant, until he made he would inquiry, particular whether retailer the distinction.” There is why BARROW, another reason Justice. trial court did not abuse its discretion in re I concur did not trial court abuse fusing issue a temporary injunction, be in refusing this tem- cause it would have in probability given porary injunction pending trial on the appellant all the relief to which it would be merits. entitled on the final hearing, insofar as in- junctive relief is Tex.Jur.2d, concerned. Ledel Shows, v. Bill Hames
Inc., Tex.Civ.App., 367 The provided would not
compete appellant period with of six months employment after his was termi
nated. This April occurred on when resignation tendered his COMPANY, Inc., KAISER GYPSUM began competing appellant almost im Appellant, mediately. application No temporary for a 9, 1965, filed July until more JORDAN, Appellee. B.H. than two begun No. 4436. competing appellant soliciting ap pellant’s customers their business. Appeals Court of Civil of Texas. There is showing appellant no here that Waco. could not have hearing obtained a on the Jan. merits permanent of the case for a in junction, together hearing with a for dam Rehearing Denied Feb. ages, at very once or within a short while. injunction was refused on 18, 1965, October there no showing appellant
that since that date has made *6 effort to secure hearing on merits of the case in the trial Ledel court. v. Bill Shows, Inc.,
Hames supra. appellant Yet asks this judgment Court to reverse the the trial grant court and temporary now
injunction, eight some began competing appellant. There is appellant upon burden diligence to show trying dispose of the case its merits in the trial court before will have right expect this Court to issue a tem porary injunction at this late date. Tex.
Jur.2d, Foundries, Texas Inc. International & Foundry Moulders Union, Workers Shows, Inc., v. Bill Ledel Hames supra. did
The trial court not abuse injunction. judgment is affirmed.