Cockerill v. Wilson
| Decision Date | 30 March 1972 |
| Docket Number | No. 44087,44087 |
| Citation | 281 N.E.2d 648,51 Ill.2d 179 |
| Parties | Vernon L. COCKERILL, Appellee, v. Larry E. WILSON, Appellant. |
| Court | Illinois Supreme Court |
Lewis, Blickhan, Garrison & Tucker, Quincy, for appellant.
Foreman, Rammelkamp, Bradney & Hall, Jacksonville (Albert W. Hall and T. C. Rammelkamp, Jacksonville, of counsel), for appellee.
This case involves a suit for an injunction to enforce a restrictive covenant in a contract whereby two doctors of veterinary medicine agreed to form an association for the practice of that profession in Rushville, Illinois. The circuit court of Schuyler County granted the injunction and enjoined the defendant from practicing his profession and engaging in certain business activities in violation of the agreement. The appellate court modified the decree and permitted the defendant to practice veterinary medicine within the proscribed area but held that the defendant's office clinic or professional facility had to be located outside of the restricted area. (Cockerill v. Wilson, 130 Ill.App.2d 679, 265 N.E.2d 514.) We granted the plaintiff leave to appeal from the appellate court decision.
In 1958 plaintiff, Dr. Vernon L. Cockerill, took over an established practice of veterinary medicine from another veterinarian in Rushville, Illinois. He practiced as a sole practitioner until 1965 when he engaged the services of the defendant, Dr. Larry E. Wilson, who had been licensed to practice veterinary medicine a little more than a year prior to that date. Before starting his employment with Dr. Cockerill the defendant was a total stranger to the Rushville area. In 1966 Dr. Cockerill and Dr. Wilson entered into an agreement for the formation of an association for the practice of veterinary medicine. The effective date of this agreement was January 1, 1967. In the agreement the plaintiff, Dr. Cockerill, agreed that Dr. Wilson would receive 1/3 of the net profits from the practice with a guaranteed annual salary of $10,000. The agreement also contained the following restrictive language:
'That the associate, Dr. Larry E. Wilson, hereby covenants and agrees that in the event he voluntarily or involuntarily leaves this association that he will not, for a period of five (5) years from the date said association is terminated, practice veterinary medicine, operate an animal health supply store or operate a small animal clinic, individually or in association or employment of others within a radius of thirty (30) miles from Rushville, Illinois.'
The agreement further provided that it could be terminated by the plaintiff by the giving of 30-days' notice and by the defendant by the giving of 90-days' notice. The agreement was terminated by the plaintiff, Dr. Cockerill, at the end of January, 1968. Following the termination of the association, plaintiff, Dr. Cockerill, instituted this suit to enjoin the defendant, Dr. Wilson, from violating the terms of the restrictive covenant. The plaintiff later amended the prayer of his complaint reducing the radius of the area affected from 30 miles as provided in the covenant to 20 miles.
In the trial court defendant contended that the covenant was unenforceable for several reasons including lack of mutuality of the agreement, breach of the agreement by the plaintiff and the unreasonableness of the restraint. Extensive testimony was heard concerning the territory that had been served by the plaintiff and the defendant practicing together, the number of veterinarians serving the area and and the need for veterinary services. There was also considerable evidence offered concerning whether the plaintiff had violated the agreement. The trial court found the issues in favor of the plaintiff and enjoined the defendant in the language of the covenant except that the territory was reduced to a radius of 20 miles as plaintiff had prayed. The appellate court also found the issues in favor of the plaintiff and found the covenant to be enforceable but construed the covenant as only requiring that the defendant must locate his place of business outside the 20 mile radius. The opinion stated that prohibiting the defendant from practicing his profession within the territory but from a professional facility outside of the territory is not indicated to be required by the covenant nor to protect any reasonable interest of the plaintiff as shown by the record.
Plaintiff has been granted leave to appeal to this court from the decision of the appellate court and here points out that the defendant's sole contention in the trial court was that the covenant was unenforceable and that this was likewise defendant's contention in the appellate court. At no time did the defendant seek a construction of the covenant which would permit him to service clients in the proscribed territory from a facility located outside the territory. Plaintiff cites Blanchard v. Lewis (1953), 414 Ill. 515, 112 N.E.2d 167, wherein it was contended that an unsolicited construction of an agreement by the appellate court injected a new issue into the case against which the opposing party had had no opportunity to defend. This court held in Blanchard that the appellate court is subject to the same limitation as the litigants who cannot try the case on one theory in the trial court and another in the reviewing court. Pursuant to the provisions of rules of this court adopted since Blanchard the broad statement in that case has been narrowed by the decision of this court in Hux v. Raben (1967), 38 Ill.2d 223, 230 N.E.2d 831. Construing the provisions of Rule 341(e)(7) (43 Ill.2d R. 341(e)(7)) and Rule 366(a)(5) (43 Ill.2d R. 366(a)(5)) Ill.Rev.Stat.1971, c. 110A, §§ 341(e)(7), 366(a)(5) the court concluded: 'These provisions recognize that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system.' (38 Ill.2d 223, 225, 230 N.E.2d 831, 832.) Rule 341(e)(7) provides: 'Points not argued are waived * * *.' Rule 366 p...
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...49, 254 N.E.2d 433 (1969)), restrictive covenants contained in employment contracts are valid and enforceable (Cockerill v. Wilson, 51 Ill.2d 179, 281 N.E.2d 648 (1972); Canfield, 44 Ill.2d 49, 254 N.E.2d 433; Abel v. Fox, 274 Ill. App.3d 811, 211 Ill.Dec. 129, 654 N.E.2d 591 (1995)), as ar......
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...contention that the covenant was void because the plaintiff had no legally protectable interest. However, in Cockerill v. Wilson, 51 Ill.2d 179, 281 N.E.2d 648 (1972), our supreme court decided the validity of the geographic extent of a covenant restricting a veterinarian's practice, indica......
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...test has as its origin the supreme court cases of Canfield v. Spear (1969), 44 Ill.2d 49, 254 N.E.2d 433, and Cockerill v. Wilson (1972), 51 Ill.2d 179, 281 N.E.2d 648. In Canfield, defendants were a group of medical doctors practicing in Rockford, Illinois who accepted the plaintiff, a der......
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