My view of the law of this case is best expressed in the following quotation from the Supreme Court of Texas in the case of Oak Cliff Ice. Del. Co. v. Peterson (Tex.Civ.App.),300 S.W. Rep. 107, where the court said of a similar controversy: *Page 163

The validity of the covenant in question, both as to the assigned and adjoining territory, depends upon its terms being necessary for the preservation of both the business and good will of the appellant after the termination of the employment, and if such covenant imposed a greater restraint on the appellee than was necessary to secure such protection, to that extent same is unenforceable as being contrary to public policy. The necessity for the covenant, as well as its reasonableness, must rest upon the services rendered by appellee to appellant under his employment, in the conduct of its business, and be confined to the territory in which appellee operated in the performance of his duties as such employee. In the enforcement of such covenants, courts will diligently and with a jealous care inquire into the necessity for and the reasonableness of same to the end that those who through necessity must labor to earn a livelihood will not be placed at the mercy of those who do not so have to toil, for otherwise a condition of industrial servitude might be developed. The right to labor is inherent, being enjoined by the very existence of the human family, and the freedom of the laborer to put forth his best efforts to justly enlarge his sphere of operation, usefulness, and income, should never be interfered with or restricted save and except by that which is within and for the public good, or within a sound public policy. Therefore, full and satisfactory proof should be required of the litigant having the burden of proof to establish the necessity for, and the reasonableness of, covenants restricting such inherent right to labor."

This Court itself in Simms v. Burnette, 55 Fla. 702,46 Sou. Rep. 90, has heretofore adopted a similar rule which is to the effect that a court of equity will not intervene to enforce specific performance negatively by enjoining breach *Page 164 of a restrictive labor covenant, where it is made to appear that the contract is harsh and oppressive in favor of the employer against the employee, or is otherwise lacking in fairness or mutuality of obligation between the parties to it.

If the employee, while working for a new employer, should undertake to get for his new employer his former employer's patronage by creating the impression on his former employer's customers that he is still with the company whose business he no longer represents, then he might be subject to injunctive interference to prevent such unfair competition, to an extent necessary to suppress such unfair activities. But that would be the granting of injunctive relief upon a different principle — and not a negative specific enforcement of an inequitable contract by injunction. See Gottdiener v. Joe's Restaurant,111 Fla. 741, 149 Sou. Rep. 646, for a discussion of the latter principle.

I therefore concur in the opinion and conclusion on rehearing.