Burdine v. Brooks

• Decision Date: 10 October 1949
• Docket Number: 16775,16799,16823.
• Citation: 55 S.E.2d 605,206 Ga. 12
• Parties: BURDINE v. BROOKS (two cases). BROOKS v. BURDINE.
• Court: Georgia Supreme Court

55 S.E.2d 605

206 Ga. 12

BURDINE v. BROOKS (two cases).

BROOKS v. BURDINE.

Nos. 16775, 16799, 16823.

Supreme Court of Georgia

October 10, 1949

Syllabus by the Court.

1. The allegations of the petition were sufficient to set forth a cause of action; and the trial judge did not err in overruling the general demurrer to the petition.

2. The special demurrers interposed to the petition are without merit.

3. Under the evidence adduced on the interlocutory hearing, the trial judge did not abuse his discretion in granting a temporary injunction.

Courtney C. Brooks filed in the Superior Court of Fannin County a petition against Dr. James M. Burdine, alleging in substance that prior to January 24, 1949, he negotiated with Dr. W. E Burdine, a brother of the defendant, for the purchase of the Burdine Hospital, located in Blue Ridge, Georgia; that the defendant and W. E. Burdine were practicing madicine together prior to January, 1949, with their headquarters at the Burdine Hospital, and the defendant was a surgeon and performed operations at the Burdine Hospital; that the plaintiff negotiated with the defendant and his brother, W E. Burdine, for the purchase of the hospital and good will established by its conduct by the defendant and his brother and on January 24, 1949, W. E. Burdine conveyed to the plaintiff the described tract of land on which the hospital was located, and at the same time the defendant entered into a contract with the plaintiff, by the terms of which, in consideration of $1 and other valuable consideration, the defendant agreed that the good will and the practice of what is known as the Burdine Hospital was conveyed and transferred to the plaintiff, and the defendant would not establish or maintain a clinic or office in Fannin County, Georgia, where people might come for treatment, for a period of ten years from April 1, 1949, except that the defendant should have the right to practice medicine in Fannin County by house calls made from an office in an adjoining county.

The petitioner further alleged that he was a surgeon and engaged in the practice of medicine at Cumming, Georgia, and in consideration of the purchase of the hospital he closed his own business at Cumming; that he paid $26,000 for the hospital; that the defendant made the covenant contained in the contract signed by him, knowing that the petitioner was acting upon the understanding and agreement that both the defendant and W. E. Burdine would cease operating a hospital or carrying on the business of actively practicing medicine and surgery in Fannin County after April 1, 1949, for a period of ten years, except as permitted by the agreement.

It was further alleged: That, on or about April 1, 1949, the defendant, in violation of his agreement, did open up an office and clinic in the City of Blue Ridge, Georgia, under the style and name of 'Health Institute, Clinic and Pharmacy. Dr. James M. Burdine, Physician and Surgeon' and he was at the time of the filing of the petition on May 14, 1949, carrying on the business of a surgeon and the practice of medicine, writing prescriptions, examining patients, and keeping and maintaining a nurse or assistant, and in general doing a regular business as a physician and surgeon contrary to the terms of his agreement; that each day the defendant continues to operate his business constitutes a new and distinct wrong against the rights of the petitioner and a new violation of his contract; that the damages sustained by the petitioner would be difficult to estimate with a degree of accuracy so as to give the petitioner complete and adequate compensation; and that the petitioner is without an adequate remedy at law.

The petitioner prayed for a temporary and permanent injunction.

A general demurrer was interposed to the petition, upon the grounds that (1) it set forth no cause of action; (2) the allegations of the petition show that the plaintiff has an adequate remedy at law; (3) the petition fails to show that the contract declared upon is reasonably necessary to protect the interest of the plaintiff, and that its enforcement would not be specially injurious to the public; and (4) the petition shows on its face that the contract declared upon is void and unenforceable because it is repugnant to article four, section four, paragraph one, of the Constitution of the State of Georgia. The defendant also demurred specially to certain paragraphs of the petition. These demurrers were overruled, and to this judgment the defendant excepted.

On the interlocutory hearing, the plaintiff introduced in evidence his original verified petition, a deed from W. E. Burdine to the plaintiff, dated January 24, 1949, conveying the tract of land on which is located the Burdine Hospital, and containing a covenant that the grantor, for a period of ten years from the date of the conveyance, would not maintain a hospital clinic, or office in Fannin County, except that the grantor would have the right to practice medicine by house calls made from an office in an adjoining county. The plaintiff also introduced in evidence the contract sued on, containing the following covenant by the defendant: 'That the said party of the first part, for and in consideration of the sum of one dollar, and other valuable consideration, does hereby agree and covenant that the good will and practice of what is known as the Burdine Hospital is hereby conveyed and transferred to the party of the second part, and the said party of the first part hereby stipulates and covenants that he will not establish or maintain a hospital, clinic, or office in Fannin County, State of Georgia where people might come for treatment, for a period of ten years from April 1, 1949, except the said party of the first part shall have the right to practice medicine by house calls made from an office in any adjoining county to the said County of Fannin.' The defendant introduced in evidence the affidavit of Dr. W. A. Arnold, being to the effect that he was a practicing physician and surgeon, and in his opinion no community in Georgia should have fewer than one physician for each 1,000 to 1,500 population; that in his opinion a physician who makes house calls should have laboratory facilities in order to render efficient service to his patients; that to reduce the number of physicians in any community below the ration mentioned in his affidavit would be specially injurious to the public; and that to make it necessary for a physician to practice medicine and minor surgery without a clinic and reasonable laboratory facilities, would be injurious to his patients. The affidavit of W. H. Rogers was to the effect that, in his opinion, Blue Ridge and Fannin County have too few physicians and surgeons to really accommodate and fill the needs of the people, and to close the clinic of Dr. Burdine would work a hardship on a great number of people, for the reason that one doctor and one clinic cannot properly serve the needs of the people, and would cause some of the people to have to suffer for the want of a physician and hospital; that it was to the best interest of the people to keep all the physicians and hospitals now in the county. Affidavits to the same effect, signed by a number of people, were introduced in...