Krueger, Hutchinson and Overton Clinic v. Lewis

• Decision Date: 04 January 1954
• Docket Number: No. 6360,6360
• Citation: 266 S.W.2d 885
• Parties: KRUEGER, HUTCHINSON & OVERTON CLINIC v. LEWIS.
• Court: Texas Court of Appeals

Page 885

266 S.W.2d 885

KRUEGER, HUTCHINSON & OVERTON CLINIC v. LEWIS.

No. 6360.

Court of Civil Appeals of Texas, Amarillo.

Jan. 4, 1954.

Rehearing Denied Feb. 1, 1954.

Klett, Bean & Evans, Crenshaw, Dupree & Milam, Lubbock, for appellants.

Boling & Smith, Lubbock, for appellee.

PITTS, Chief Justice.

Appellants, Dr. J. T. Krueger, Dr. J. T. Hutchinson, Dr. Ben D. Hutchinson and Dr. M. C. Overton, composing what is known as Krueger, Hutchinson and Overton Clinic of Lubbock, Texas, sought an injunction restraining appellee, Dr. Richard Q. Lewis, from violating a written agreement executed by him and the Clinic in connection with appellee's employment by appellants, providing in part that if such employment of appellee ceased, he would not thereafter practice his profession in Lubbock County. A hearing was held before the trial court without a jury and with all parties present on June 27, 1953, as a result of which the trial court, after considering all the pleadings, including appellants' motion for a summary judgment, together with affidavits of appellants and a deposition of appellee, sustained an exception of appellee to the petition of appellants, held the contract invalid and dismissed appellants' alleged cause of action upon their refusal to amend and thereby denied appellants' motion for summary judgment. Appellants perfected an appeal from such judgment.

Appellants pleaded, in effect, in their original petition filed January 19, 1953, that they had established the Clinic and had been practicing medicine and surgery in Lubbock for many years; that by work, study and skill they had established themselves as successful physicians and surgeons and had established a good reputation for the Clinic which merits a large patronage in and around Lubbock, which area has grown in recent years in population, increasing their number of patients and necessitating an expansion of their staff of physicians and surgeons in various branches of medical science in order to adequately care for the needs of their patients; that they have added young physicians of good reputations and evidenced talents to their staff and have pursued the practice of advancing them as rapidly as their talents, ability and experience would justify by furnishing them the facilities of the Clinic and an opportunity for advancement professionally and financially; that on or about January 2, 1950, appellee was so admitted to the staff of the Clinic under contract as hereinafter set out which bound him legally and morally according to its terms and as a member of the Clinic staff whereby he was furnished office space and facilities for the proper practive of his profession and in addition thereto appellants paid him approximately $40,000 during a period of three years; that during the said period appellants caused appellee to contact many patients, who formed a close intimate acquaintance and relationship with him; that by reason of such friendships and relationships so formed through appellants and their Clinic, appellee will draw after him and away from the Clinic, because of his departure therefrom as later herein set out, many patients in violation of the terms of the contract; that appellants have fully and completely performed each and every obligation imposed upon them by sharing their profession and business with appellee which resulted in his advancement professionally and financially until he voluntarily and without fault of appellants severed his association with appellants by a letter written to them on January 5, 1953, which letter is hereinafter copied in full; that appellee soon thereafter began the practice of his profession in Lubbock and solicited business in violation of the terms of the contract in question and will draw many patients from appellants' Clinic, thus causing appellants to suffer hardships, pecuniary losses, irreparable damages and injury for which reason they sought injunctive relief.

A copy of the contract attached to appellants' pleadings as 'Exhibit A' is as follows:

'Lubbock, Texas, January 2, 1950

'Krueger, Hutchinson and Overton Clinic hereby admits Dr. Richard Q. Lewis to its staff.

'The said employee agrees to give to said employers all of his time while engaged in such services for them, and to assist them in any way necessary to help in the work of the Clinic and Hospital.

'In consideration of the fact that said employers will be incurring incalculable cost and expense, in a professional and financial way, in admitting the said employee to the staff of said Clinic, and that the employers will suffer more or less irreparable damage it and when employment ceases, the said employee agrees that at any time his association or connection with said employers is severed, he will not thereafter practice his profession in Lubbock County, and that he will not in any way undertake to induce any technician, assistant, nurse or other employees to cease his association or connection with said employers or Clinic.

'It is hereby agreed that such employment shall cease if, at any time, in the judgment of the employers, such employee becomes dishonest, disobedient, or disloyal, or his service inefficient, unprofitable or unsatisfactory, or should the relationship of employer and employee otherwise be terminated by mutual consent or operation of law. Krueger, Hutchinson & Overton Clinic

Employers

By /s/ C. E. Hunt

/s/ Richard Q. Lewis

Employee'

Appellee's letter hereinabove referred to and a copy of which was attached to appellants' pleadings as 'Exhibit B' is as follows:

'Krueger, Hutchinson & overton Clinic

Lubbock, Texas

January 5, 1953

'Department of Surgery

'J. T. Krueger, M. D.

'J. H. Stiles, M. D.

'A. W. Bronwell, M. D.

'A. Lee Hewitt, M. D.

'R. Q. Lewis, M. D.

'J. H. Selby, M. D.

'The Board

Krueger, Hutchinson and Overton Clinic

Lubbock, Texas

'Gentlemen:

'With extreme reluctance I find it necessary, for personal reasons, to submit my resignation from the Staff of Krueger, Hutchinson and Overton Clinic, effective immediately. However, if it is the desire of the board, I shall be perfectly willing to remain on the active staff until a suitable replacement can be obtained, but this cannot be for a period of more than sixty days.

'I wish to express my appreciation to the board for their more than generous and patient consideration of my almost constant expressions of discontent while working here during the past three years.

'Since it is my fervent belief that the city of Lubbock is now of a size adequate to support at least four orthopedic surgeons, that the board will see fit to recognize my right to pursue my profession in the city of Lubbock without penalty.

'Respectfully submitted,

/s/ R. Q. Lewis

'R. Q. Lewis, M. D.'

RQL/cw

Appellee answered with many exceptions, supported by defensive pleadings, alleging the contract was harsh and unreasonable, the recent growth of Lubbock County, the number of physicians practicing there, that it would be expensive for appellee to move, that he then had many patients in his private practice, that the contract is void and unenforceable and particularly 'In this connection, said restrictive covenant sought to be enforced by plaintiffs is also unreasonable as to time, in that if this defendant were required to be absent, or cease to practice his profession in Lubbock and Lubbock County for any length of time at all, this defendant would lose his said practice for the reason that the patients and clients of this defendant would necessarily be required to seek treatment and care elsewhere and would not come back to this defendant after he had been compelled to move from Lubbock County.'

In their appeal appellants have presented three points of error, which will be herein stated as we discuss them. Their first point charges error by the trial court because it sustained appellee's exception No. 2 to the petition of appellants and held that the contract sought to be enforced was invalid because it, although limited as to space, was unlimited as to time. The trial court, after considering the pleadings, the supporting affidavits of appellants and the deposition of appellee and the argument of counsel, sustained appellee's special exception contained in paragraph two of his answer for the reason there was no restriction time limit shown in the contract, concluded the law in the case favored appellee and held the contract sued on to be invalid and unenforceable for such reason and the trial court gave no other reason for its judgment.

Appellee's special exception number two as pleaded in his answer to appellants' petition is set out in the following language:

'Defendant comes and specially excepts to said petition for the reason that the purported contract se out in plaintiffs' petition as Exhibit 'A' is void and unenforceable insofar as it attempts to restrict the right of defendant to practice medicine and surgery for the remainder of his life in Lubbock County, Texas, for the reason that such period of restriction is harsh and unreasonable and is in restraint of trade.'

In connection with matter the result of the action of the trial court presents only the question of whether or not a covenant or agreement in a contract of employment, though reasonably limited as to space, is void and unenforceable because it is unlimited as to time. Appellee levelled another special exception to appellants' petition on the grounds that the restriction of space to Lubbock County in the contract was unreasonable and was there fore void and unenforceable. There is nothing in the record to show that this and other special exceptions were ever called to the attention of the trial court, in which event they were waived by appellee. However, the trial court asserts it read and considered all of the pleadings and in its final judgment sustained only the special exception in question as to the restriction of unlimited time, without therein showing any specified action having been taken by the...