Harris v. Thomas

• Decision Date: 07 January 1920
• Docket Number: (No. 1590.)
• Citation: 217 S.W. 1068
• Parties: HARRIS v. THOMAS et al.
• Court: Texas Court of Appeals

217 S.W. 1068

HARRIS v. THOMAS et al.

(No. 1590.)

Court of Civil Appeals of Texas. Amarillo.

January 7, 1920.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Action by M. B. Harris against G. T. Thomas and others. From an order dissolving a temporary injunction theretofore granted, the plaintiff appeals. Affirmed.

F. P. Works, of Amarillo, for appellant.

Madden, Trulove, Ryburn & Pipkin, Kimbrough, Underwood, Jackson & Simpson, Veale & Lumpkin, and Reeder & Reeder, all of Amarillo, for appellees.

HUFF, C. J.

The appellant, Harris, by his petition sought an injunction and to recover damages against G. T. Thomas, A. F. Lumpkin, E. A. Johnson, R. D. Gist, R. L. McMeans, G. T. Vineyard, I. Rascoe, J. R. Wrather, J. D. Jordaan, S. P. Vineyard, W. H. Flamm, J. J. Crume, and the Congregation of Sisters of Charity of the Incarnate Word. The prayer of the petition is for a writ of injunction restraining each of the defendants from further interfering with his practice in the St. Anthony Sanitarium and requiring and directing the Congregation of Sisters of Charity of the Incarnate Word, its agents and representatives, in control of the sanitarium, to permit plaintiff to practice therein as he did prior to May, 1919, and defendant doctors and those acting under their direction be restrained from directly or indirectly, through their employment or lack of employment of nurses, or otherwise, from influencing the managers of the sanitarium against plaintiff or his practice in any way, and for judgment perpetuating the injunction, and in the alternative for damages, etc. The petition was presented to Hon. Henry S. Bishop, judge or the district court, July 19, 1919, whereupon he granted a temporary writ as prayed for, and indorsed his action on the petition. The petition and bond were filed on said date by the clerk of the district court of Potter county. The defendants filed a motion to dissolve the injunction, and upon hearing in vacation September 30, 1919, Hon. Henry S. Bishop dissolved the injunction theretofore granted, from which order this appeal is prosecuted. The statement of the pleadings and issues made by the appellees is a reasonably fair condensation of the voluminous pleadings in this case, and for convenience we adopt their statement which is as follows:

"The plaintiff alleged that he was a regularly licensed physician, practicing medicine and surgery, and being licensed to practice medicine and surgery under the laws of the state of Texas as a doctor of osteopathy, medicine, and surgery, issued to him on November 13, 1907, by the state board of medical examiners of the state of Texas, which license had been in full force and effect at all times since the date of its issuance, and being duly registered, as required by law, in the office of the district clerk of Potter county, Tex.; that he was 44 years of age, and during his life had acquired an education that would fit him for the practice of medicine, osteopathy, and surgery, and had taken a full course in American School of Osteopathy at Kirksville, Mo., graduating in 1898, and since that time had practiced in Missouri and Texas, having taken a post-graduate course in 1908, taking full courses in operative surgery and medicine; that he had also taken medical lectures in the Northwestern University and in Rush Medical College, and had attended clinics of Mayo Bros. in Rochester, Minn., as well as Murpheys and Ochners, and had likewise attended clinics and studied surgery in London and Paris, and in 1915 received a medical degree from the Pacific Medical College of Los Angeles, Cal.; the plaintiff moved to Amarillo in the year 1910, and since that time had built up a practice in osteopathy and surgery, including an extensive practice, most of which hospital work had been done in St. Anthony's Sanitarium, which is operated and controlled by defendant Congregation of Sisters of Charity of the Incarnate Word, and that the said St. Anthony's Sanitarium is the only sanitarium and hospital in Amarillo, and that plaintiff's patients had used the same almost exclusively; that the 11 individual defendants heretofore named, as practicing physicians and surgeons in Amarillo, had likewise used said sanitarium in their surgical and hospital work; that about the year 1912 the defendant doctors entered into a conspiracy and boycott to drive plaintiff out of his practice and business, and in furtherance thereof the defendants Thomas, Lumpkin, Johnston, Vineyards, and Crume demanded of those in charge of that sanitarium that plaintiff be excluded from operating and practicing therein, upon the ground that he used and practiced osteopathy, and said that, if he was not so excluded, they and the other doctors with whom they were associated, amounting to about 20 doctors, would cease to practice and operate in said sanitarium, and further stated that, if plaintiff was not excluded, they would open up and operate an independent hospital in Amarillo, in opposition to said sanitarium; that the management of said sanitarium would not accede to said demand, and that, in pursuance of said threat, the defendants Thomas and Lumpkin did open up and operate for about a year and a half a hospital at the corner of Sixth and Tyler streets in Amarillo; that the defendant doctors have carried on their conspiracy and attempted to boycott under the name of the Potter County Medical Association, whose policy they completely dominated, and that in furtherance of said conspiracy the secretary of the said Potter County Medical Association in 1912 gave notice in writing to all the members of said association that, if they administered an anesthetic for or assisted plaintiff in any way in a surgical operation, they would be expelled from said association, and plaintiff, being deprived of the assistance of other doctors in the administration of anesthetics, was required at great expense to provide assistance by bringing into his office doctors from a distance, to his damage in the sum of $5,000; that, in still further pursuit of such conspiracy and boycott against said plaintiff, a rule was passed in said association that no major surgical operation could be performed at said sanitarium unless there were three doctors present, which required plaintiff to go to an additional expense of bringing doctors from other towns, to plaintiff's further damage in the sum of $1,000; that the defendant doctors, in the further effort to ruin the plaintiff in his business and profession, influenced and induced practically all the nurses who worked in said sanitarium and in and about Amarillo to refuse to nurse cases for plaintiff; that the defendant doctors, through the Potter County Medical Association and its affiliated associations, to wit, the State Medical Association of the state of Texas and the American Medical Association, in an effort to oppose and ruin in business all physicians who practice osteopathy, have attempted to put into effect in the hospitals and sanitariums in the country, and especially in St. Anthony's Sanitarium, in Amarillo, a process and change called standardization; in and through the influence of defendant doctors by means of their control of the Potter County Medical Association, in connection with the other associations, an influence has been brought to bear upon the managers of the sanitarium and other hospitals as to the matter of securing and employing nurses to receive free training and lectures from said doctors by opposing the use of nurses from sanitariums which permitted the practice of osteopathy therein; that about May 29, 1919, the defendants Thomas, Lumpkin, Lawler, Johnston, Gist, McMeans, G. T. Vineyard, and Rasco went to the sanitarium, and, after consulting with those in charge, to wit, Mother M. Nativity and Sister Denis, agreed with them to assist in standardizing said hospital and organizing a medical staff without unjust discrimination against any one, and that said doctors organized themselves into a staff of physicians and agreed upon what other doctors should be admitted to the staff, and instructed said Sisters that plaintiff would be excluded from said staff and not be permitted to practice in said institution, and instructed the Sisters to so advise the plaintiff, which they did; that said exclusion was not on the ground of incompetency, lack of skill, or capability as a surgeon, but simply because he was irregular and was not a member of the particular branch of medicine represented by said staff or board, and not a member of the local association; that said plan of standardization advocated more thorough complete records, a more adequate laboratory service, and the organization and development of a staff of doctors according to the plans of the American College of Surgeons, which contemplates an open and restricted staff; and that the defendants were making a subterfuge and cloak of said standardization for the purpose of arbitrarily and maliciously eliminating plaintiff from practicing in said hospital and for the purpose of securing a monopoly of said practice in said sanitarium.

"Plaintiff further alleges that said discrimination and boycott was illegally made, and is not so permitted by the laws of the state of Texas, and is a criminal trust under the penal statutes of the state of Texas, and that plaintiff is licensed to practice medicine, surgery, and osteopathy, and is entitled to practice the same without any molestation or restraint; that, in furtherance of said conspiracy, defendant doctors have circulated false and fraudulent statements among plaintiff's friends and acquaintances as to his capability and efficiency as a surgeon, stating that he had received his license by mail, and stating that he was irregular and offgrade in his training, and lacked training and preparation, notwithstanding the fact that plaintiff's skill equaled, if not exceeded, that of the defendant doctors; that said statement was...