Odess v. Taylor, 6 Div. 471

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM; LIVINGSTON
Citation211 So.2d 805,282 Ala. 389
PartiesJohn S. ODESS v. William H. TAYLOR, Jr.
Docket Number6 Div. 471
Decision Date02 May 1968

Page 805

211 So.2d 805
282 Ala. 389
William H. TAYLOR, Jr.
6 Div. 471.
Supreme Court of Alabama.
May 2, 1968.
Rehearing Denied June 20, 1968.

[282 Ala. 390]

Page 806

Edw. M. Selfe, Macbeth Wagnon, Jr., and Bradley, Arant, Rose & White, Birmingham, for appellant.

[282 Ala. 391] Max Pope, R. Clifford Fulford and Levine, Fulford, Gwaltney & Pope, Birmingham, for appellee.

Page 807


This appeal is from a decree entered after a hearing denying a permanent injunction to enjoin the respondent, an ear, nose, and throat specialist, from engaging in the practice of his profession in the City of Birmingham. Complainant's application for a temporary injunction had been refused, but no steps were taken to appeal from such order.

The pleadings and evidence show that the complainant, Dr. John S. Odess, is an established physician in Birmingham. He has been in the practice of medicine since 1946. His specialty is otolaryngology, a branch of medicine involving both medical and surgical diagnosis and treatment of ailments or diseases of the ear, nose, and throat. This specialty is commonly designated as ENT, and will often be so referred to hereafter.

That Dr. Odess is highly successful in his field is evidenced from his testimony that he has a patient list of some 25,000 persons. He sees from 60 to 70 patients per day in his office, and performs from 80 to 100 surgical procedures per month, and averages from 1000 to 1200 billings per month. His offices are in a building built and placed in a trust for the benefit of his children. Dr. Odess pays to this trust a rental of $14,400 per year.

For 1964, Dr. Odess' gross income from his medical practice was $265,997.91, his net income was $172,737.05; for 1965 his gross income was $291,947.18, his net income was $182,830.99; for 1966 his gross income was $271,257.10, his net income $173,833.25. H. Taylor, Jr. He received his medical H. Taylor, Jr. He received his medical [282 Ala. 392] degree from the School of Medicine of the University of Alabama in 1957. He did his internship in a Florida hospital and then entered the Army Medical Corps for four years. After completing his military service he did a year of general surgery in the Duvall County Hospital, Jacksonville, Florida. Having done some ENT work in the army, Dr. Taylor determined to take a residency in the University Medical Center in Birmingham to further his training in that field. Here he had one year of general surgery and three years of ENT work, serving under Dr. James J. Hicks, acting head of the ENT department in the University Medical Center.

Shortly prior to March 1966, Dr. Odess and Dr. Taylor held a conversation relative to Dr. Taylor entering practice with Dr. Odess. This conversation resulted in an exchange of letters and these letters constitute the contract between Dr. Odess and Dr. Taylor.

Dr. Odess' letter to Dr. Taylor, dated March 11, 1966, is as follows:

'I am writing this letter at your request relative to our recent conversation.

'It was my understanding that our agreement was as follows: We will enter into the association for the practice of Ear, Nose and Throat on July 1, 1966. For a period of twelve (12) months your remuneration will be twenty five thousand dollars ($25,000). At the end of this time we will evaluate your productivity and for the next six months you will be paid on the basis of the percentage of the gross product you have produced.

'After eighteen (18) months have passed, Dr. Andrew Brown will have been in the office for approximately six (6) months and at that time the three of us will sit down and arrive at a financial basis relative to each of our gross. As our gross product approaches equality, then a full salary adjustment can be realized.

'It was further agreed that, if for some reason, our association does not work, then either of us may give one month's notice and terminate our association. If a termination such as this occurs, then it was further agreed that you would not practice within a radius of fifty (50)

Page 808

miles of Birmingham, Alabama. The purpose of this is that when you become associated with us I would expose the whole weight of my practice to you and if you were to leave me I would not want my practice damaged by your remaining within the fifty mile radius.

'If there are any additions or correstions to this agreement, please don't hesitate to let me know.'

Dr. Taylor on 8 July 1966, replied:

'I am writing this letter in response to your letter of March 11, 1966.

'I find the terms as stated in your letter relative to entering into the association for the practice of Ear, Nose and Throat quite agreeable and acceptable.

'Thank you very much.'

Dr. Taylor entered practice with Dr. Odess around 1 July 1966. After some three months upon examining the books, Dr. Taylor found that under the data processing records for work done and fees earned, credit was being given to Dr. Odess that should have been credited to him; that the less remunerative Crippled Children's Clinic work was being assigned to and handled almost exclusively by himself (Dr. Taylor), and that expenses such as 'gifts,' 'entertainment' and 'auto expense,' etc., which Dr. Taylor considered out of line, were being charged against the gross earnings.

Dr. Taylor made efforts to discuss these matters with Dr. Odess, but was not successful. These matters of course would bear upon Dr. Taylor's compensation for the six months following the first year of the association. Being unsuccessful in having [282 Ala. 393] Dr. Odess discuss these matters, Dr. Taylor gave timely notice to Dr. Odess that he was joining the Norwood Clinic as head of its ENT department as of January 1967.

There is a divergence of testimony as to the number of patients that might change from Dr. Odess to Dr. Taylor. Dr. Odess estimated the number at not less than 100 nor more than 1000. Dr. Taylor testified he had seen about 30 patients in his first three months at Norwood Clinic whom he had seen at Dr. Odess' office. These patients were either people who knew him before he associated with Dr. Odess, or patients he had been actively treating post surgically in Dr. Odess' clinic, or people who had asked him to notify them of his new location.

In this connection Dr. Taylor testified that when it became evident he could get no adjustment of the bookkeeping methods and that he would discontinue his association with Dr. Odess, he contacted the Jefferson County Medical Association and told them he was leaving Dr. Odess and requested advice as to his responsibility to the patients he had been seeing and treating. He was advised that he had a duty to such patients to notify them either orally or by mail of his intended move. Dr. Taylor did inform some 563 patients whom he was treating that he was joining Norwood Clinic, but assured them they would receive good treatment from Dr. Odess and that they had a right to change to Dr. Odess if they desired.

Dr. Odess testified that there are no 'trade secrets' in the practice of medicine, that he felt he had taught Dr. Taylor some things, and also that he had learned some things from Dr. Taylor.

Again, as to the need for ENT specialists in Birmingham, the testimony is in dispute. Dr. Odess testified that according to the 1965 edition of 'Red Book' which we take to be a directory of medical doctors by specialty, there are 26 ENT men listed as practicing in Birmingham, and that probably two or three more who had recently entered the practice in Birmingham could be added.

On the other hand, Dr. T. M. Boulware, a practicing physician for some 37 years, and president...

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