Thompson v. Allain

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM; HUNTER
• Citation: Thompson v. Allain, 377 S.W.2d 465 (Mo. App. 1964)
• Decision Date: 03 February 1964
• Docket Number: No. 23809,23809
• Parties: THOMPSON et al., Plaintiffs-Appellants, v. James J. ALLAIN, Defendant-Respondent.

Page 465

377 S.W.2d 465

THOMPSON et al., Plaintiffs-Appellants, v. James J. ALLAIN, Defendant-Respondent.

No. 23809.

Kansas City Court of Appeals, Missouri.

Feb. 3, 1964.

Floyd M. Sprauge, Joseph K. Houts, Sprague, Wilcox & Houts, St. Joseph, Hale Houts, Thad C. McCanse, Houts, James, Randall, Hogsett & McCanse, Kansas City, for appellant.

Richard T. Brewster and Paul C. Dugan, Kansas City, for respondent.

SPERRY, Commissioner.

Plaintiffs are partners, practicing medicine and surgery and conducting a Clinic in St. Joseph, Missouri, and surrounding territory, under the firm name of the Thompson, Brumm and Knepper Clinic, hereafter referred to as Clinic. Plaintiffs will be referred to as partnership. Defendant is a former member of the partnership but voluntarily resigned on June 2, 1962, and engaged in the practice of medicine and surgery at 2022 Swift, in North Kansas City, Missouri, for a monetary consideration. Plaintiffs instituted suit seeking to enjoin and restrain defendant from carrying on the practice of his profession within a fifty (50) mile radius of the corporate limits of St. Joseph, Missouri, alleging it to be in violation of the restrictive terms of the partnership agreement existing between the plaintiffs and defendant on the date of, and prior to, the latter's voluntary resignation and withdrawal from the partnership. Judgment was for defendant and plaintiffs appeal.

This is an equity case. It is for trial de Novo. Our review is with deference to the findings of the trial chancellor on unreconcilable, directly conflicting verbal testimony, on fact issues; and his findings are usually sustained unless the overwhelming weight of the evidence appears to be against them. The rule does not extend to evidence in the form of depositions or documents. Sebree v. Rosen, Mo., 349 S.W.2d 865, 872. Plaintiffs, in their motion for a new trial, challenged the sufficiency of the evidence to support the judgment. They contend that, under the evidence, the judgment should have been for them. We will review the case upon both the law and the evidence and, if possible, give such judgment as the trial court should have given, as shall seem agreeable to law. Rejected testimony, if in the record and admissible, will be considered, and any incompetent testimony admitted or considered by the trial court will be disregarded. Minor v. Lillard, Mo., 289 S.W.2d 1, 2.

Dr. Thompson, a senior partner and a plaintiff, stated that plaintiffs constitute all of the senior partners of the Clinic, at this time; that defendant is an ophthalmologist (an eye specialist); that he became an employee in 1956, and became a senior partner in the Clinic January 9th, 1959; that witness and two other medical practitioners organized the Clinic in 1946; that their surgical practice, at that time, was located in St. Joseph but extended outward from one hundred (100) to one hundred fifty (150) miles, including Kansas City; that they intended adding to the membership of the partnership from time to time; that they adopted a covenant, binding on all members, not to engage in the practice of medicine or surgery, for a monetary consideration, for a period of three years after ceasing to be a partner, at any point within a radius of fifty (50) miles from the corporate limits of St. Joseph; that, thereafter, specialists in various categories of the medical practice were added as partners until the total membership was, at the time of the trial, twenty-three; that, since defendant's resignation, there had been no ophthalmologist at the Clinic; that the Clinic has treated 109,000 individual persons since its establishment; that from 300 to 500 patients per day are being treated; that patients come from a radius of one hundred fifty (150) miles; that there was no criticism of defendant's services; that, when he intimated that he would resign, witness interviewed him, tried unsuccessfully to dissuade him, and was told that he would enter practice at Milwaukee, Wisconsin; that, when it was learned that defendant would practice in North Kansas City, he was told that such would be in violation of the restrictive covenant.

Various documents were introduced without objection, including the partnership agreement containing the restrictive covenant. It was signed by all of the then senior partners, including defendant, when he became a senior partner on January 9th, 1959. The partnership agreement, including the covenant, was re-executed by all partners, including defendant, in 1961, when a new partner was admitted.

The covenant provides, in part, as follows:

'In the event of the withdrawal or retirement from the partnership of any senior partner * * * or in the event of the resignation, removal or discharge of any staff member from the Clinic, such former senior partner or former staff member shall not for a period of three (3) consecutive years, commencing from the time when his membership in or employment by the partnership shall cease, engage or re-engage in the practice of medicine and surgery for a monetary consideration in the City of St. Joseph, or in the County of Buchanan or elsewhere within a radius of fifty (50) miles from the corporate limits of the City of St. Joseph, Missouri * * *.'

The evidence was to the effect that the corporate limits of St. Joseph were extended as of December 30th, 1958; that highway 29 was opened for travel in 1960, reducing the road distance between St. Joseph and 2022 Swift, North Kansas City, defendant's present business address; that, prior thereto, the road distance between the two points was more than fifty (50) miles; that the distance, since December 30th, 1958, has been less than fifty (50) road miles; that it is forty air miles from the center of St. Joseph to defendants office; that, from the perimeter of the corporate limits of St. Joseph to Seventy First Street and Bannister Road, in Kansas City, Missouri, (which is a further distance than is 2022 Swift, North Kansas City) it is fifty (50) air miles; that in 1961, when the defendant re-executed the partnership contract, including the covenant, the distance was less than fifty (50) miles both by road and air. Defendant stated that 'radius' is a straight line drawn from the central point to the periphery of the circle. Of course, a mile along such a line would be the same as an air mile. Defendant voted, in September, 1959, with other staff members to enforce the restrictive covenant as to a former member of the staff who was...