Summary
holding that a restrictive covenant prohibiting a doctor from practicing medicine or surgery within a fifty mile radius from his former medical office was not too broad
Summary of this case from Carpetcare Multiservices, LLC v. CarleOpinion
23023.
ARGUED JULY 13, 1965.
DECIDED SEPTEMBER 9, 1965.
Injunction. Fulton Superior Court. Before Judge Moore.
Archer, Patrick Sidener, James H. Archer, Jr., Don H. Sidener, Arnold Harris, Ross Arnold, Nancy Pat Phillips, Robert B. Harris, for plaintiff in error.
Grant, Spears Duckworth, William H. Duckworth, Jr., contra.
1. The test of whether a contract possesses mutuality is to be determined as of the time it is to be enforced, and if the promisee accomplishes the object contemplated, then the promise is rendered valid and binding.
2. A contract of employment possesses the necessary requisites where it designates the employee's place of employment, the period for which he is employed, the nature of the services he is to render and the compensation he is to receive.
3. A contract of employment may stipulate the employee will not practice medicine for a specified period of time within a definite territorial area, without offending the public policy of this State.
4. The territorial limitation of a covenant of the nature referred to in the preceding headnote is not too broad if the territory included was that throughout which the employer generally practiced, although not necessarily in every part of such area, including territory over which he had reasonable prospects of extending his practice.
5. Where under the terms of a contract a cause of action accrues, subject to being divested upon the happening of a subsequent event, the occurrence of such latter event is a matter of defense that need not be anticipated in the petition.
6. The evidence authorized the grant of a temporary injunction.
ARGUED JULY 13, 1965 — DECIDED SEPTEMBER 9, 1965.
Dr. Needham B. Bateman d/b/a The Needham Bateman Group and d/b/a The Forest Park Clinic instituted suit in Fulton Superior Court against Dr. Arthur A. McMurray, praying that the defendant be enjoined from engaging in the practice of medicine or surgery within a radius of fifty miles of Forest Park, Ga., for a period of three years. The petition alleged that the plaintiff had built up one of the largest medical practices in Georgia; that he has thousands of patients who reside throughout a geographical area defined as being within a fifty-mile radius of Forest Park, including patients in 88 named cities and towns; that a study by him had determined that the majority of new patients came to him on referrals and recommendations of other patients; that on October 24, 1962, he and the defendant entered into a certain contract and from October 24, 1962, until January 9, 1965, the defendant was employed by the plaintiff as an associate and treated many of his patients; that on December 31, 1964, he elected to give the defendant six months' notice of dissolution of the association, in accordance with the written contract, but the defendant discontinued his association and employment on January 9, 1965; that, in violation of the restrictive covenant set forth in the contract, the defendant has opened an office and commenced practicing medicine within the restricted area; that the plaintiff had performed all of his duties and obligations under the contract and had a right to bring this action to enforce the restrictive covenant.
Other pertinent additional allegations of the petition are: that The Forest Park Clinic is located in Forest Park, Ga., and The Needham Bateman Group is located some seventeen miles away in Atlanta; that the plaintiff owns all of the assets of both offices, representing a capital expenditure of over $400,000; that the Group and the Clinic have a substantial amount of good will; that the plaintiff is the administrator over both the Group and Clinic and, as so such, he determines which patients will be referred to and treated by his associates or himself; that at the time the defendant came with the plaintiff the defendant had never practiced medicine or surgery in the State of Georgia, had no practice or patients and that it would be necessary to have referred to him many patients of the plaintiff and the plaintiff's Clinic and Group; that, in all areas where the plaintiff had patients, he could reasonably expect to and has received additional patients from the surrounding areas, and that the plaintiff was doing business within the entire radius of more than fifty miles from Forest Park and Atlanta and had a bona fide economic interest in such area; that the defendant had access to the names and addresses of all of the plaintiff's patients and their medical histories; that the defendant would acquire first-hand information of these patients, examine them and become familiar with their past and present medical condition and was therefore in a position to obtain a referred patient's confidence, trust and future business. It is also alleged that the plaintiff had a just and honest purpose and a legitimate interest to protect in first requiring that the defendant enter into the restrictive covenant before he made wholesale referrals of his patients to the defendant.
After the plaintiff had notified the defendant of his desire to dissolve the association, the defendant did then and there declare that the contract was unenforceable and that he would not abide by the restrictive covenant therein. The petition alleges that the defendant is now in violation of the terms of the restrictive covenant and that the defendant is now treating former patients of both the Group and Clinic and has wilfully failed and refused to stop engaging in the practice of medicine or surgery within the restricted area. In conclusion, the petition alleges the plaintiff has fully performed all of his duties and obligations under the contract and has a right to bring this action to enforce the restrictive covenant and that the contract is in full force and effect and has not been rescinded or terminated by the plaintiff; that if the defendant continues to engage in the practice of medicine and surgery within the prohibited area, the plaintiff will lose patients and suffer irreparable financial damages.
Attached to the petition was a copy of the October 24, 1962, contract, in the form of a three-page letter, which reads as follows:
"October 15, 1962.
Dr. Arthur A. McMurray.
c/o The Forest Park Clinic.
1162 Main Street.
Forest Park, Georgia.
"Dear Dr. McMurray:
"[1.] Since you are beginning practice with us I think it a good idea to put in writing the principles by which we work in this group.
"[2.] Our rule is to do for every Patient what we would want done for a member of our own family under similar circumstances.
"[3.] Our aim is to preserve a place for the private practice of medicine as it should be for the benefit of the Patients that come to us and the physicians that work with and within our group.
"[4.] It is understood that we are to work together in a frank, honest, straight-forward manner, sharing equally the good and the otherwise, and doing so in a congenial, practical, efficient manner. Trips, vacations, outside study, time off, etc. to be arranged by mutual consent.
"[5.] It is understood that you are to devote your full time to your duties within our group and that any hospital connections other than The Georgia Baptist Hospital, and any other outside connections are to be by mutual agreement.
"[6.] It is understood that all monies received by virtue of our M. D. degree are to be turned over to the proper bookkeeper the day they are received for receipt and record. All work is to be recorded in the customary manner at the end of the day and all Patient's records are left with the bookkeeper at night for tabulation and filing.
"[7.] It is understood that we each must read, study, plan and strive to improve ourselves individually as physicians making every possible effort to keep abreast of the progress in our field and to promote the progress and welfare of the group as a whole as well as the members individually.
"[8.] It is understood that all records, equipment, accounts, supplies, etc., replacements and additions thereto used at the Forest Park Clinic and by The Needham Bateman Group at The Georgia Baptist Professional Building are and shall be the property of the Forest Park Clinic.
"[9.] After payment of expenses you are to receive a check by the 10th of the month for the past month's work, based on the amount of work you have placed on the books of the group in accordance with the usual customs in practice for many years. If for any reason you do not understand your check or are not satisfied, you are to see me personally within 10 days.
"[10.] The overhead for our group, when we are fully staffed, and for similar groups in the United States runs about 50%. We collect about 90% of what is put on the books. Therefore, the 10th of each month you shall receive 50% of the money collected on the work you do or 45% of what you place on the books for the past month. If at the end of the year we can reduce our overhead and raise our percentage of collections you shall, of course, receive an additional check giving you payment in full of all money cleared on your work. In figuring the amount of work you place on the books you shall receive full credit for all office work, (including Lab. and X-ray fees) and the same for the occasional home call you might make plus 50% of all patients we (you and I) admit to the hospital for surgery, treatment of diagnosis. In this way your income shall be what it would be if we had a full complement of physicians, as we expect to have in due time.
"[11.] It is understood that we shall talk at least weekly about the work in general and anything in particular you are not clear on or pleased about. As I shall do all my talking to you regarding any shortcomings you have or any fault I have to find I likewise request the same of you.
"[12.] Since we have to set the example for our employees and Patients each doctor in the group agrees to have a personal physician, get at least an annual check up and to cooperate with his physician in keeping in the best of health.
"[13.] This association is formed with the belief and conviction that it is permanent but if for any reason it proves undesirable we shall dissolve the association upon written notice from you to me or to you by me at least six months ahead of any July 1st of any year unless a shorter period of notice is mutually agreeable and convenient. In the event of separation you agree not to engage in the practice of medicine or surgery within a radius of 50 miles of Forest Park, Georgia, for a period of three years unless agreed to by me or the senior member of the group in writing at the time of your separation. In the event of proven fraud or dishonesty or unethical conduct the association may be dissolved at any time without notice.
"[14.] All purchases by the group are to be made through the customary channels as has been our practice for some time.
"[15.] In the event anything arises not covered in this agreement nor already covered by precedent it shall be decided on the basis of the spirit herein contained and the Golden Rule, plus accepted Christian principles. Since friendship, trust and cooperation are all based on the two way street idea I shall strive to give you every assistance and consideration I would want for myself or son were I joining a group. Your welfare, happiness and future in our group I shall place above my own.
"[16.] It is my desire that you become a full fledged associate and a part owner of our undertaking. As you know, the Forest Park Clinic owns its ground, building and equipment and likewise owns the equipment and furnishings of the Needham Bateman Group located at 101 Baptist Professional Building, 340 Boulevard, N.E., Atlanta 12, Georgia. In purchasing or receiving stock in the Forest Park Clinic you acquire part ownership in our entire set-up to date. You must feel at home and that your wishes and ideas are just as important as those of any one else in the group. I want you to have your full say, to have as much pleasure from your work here as you would if you owned the whole plant. I trust you that much, I have that much faith in you, and I am that thankful to have you here to work with me.
"[17.] The Jonesboro Hospital of necessity has to be a nonprofit organization so that anyone donating to it may do so in a tax exempt manner. Nevertheless, you are to be on the Board and to have as much say so in its development and operation as you would if you put up fifty percent (50%) of the money expended in this undertaking.
"[18.] I have selected you to be our Brother and as an excellently trained and most highly recommended member from a large number of outstanding physicians. I selected you not only because of your training and ability, but because I believe that you are a true gentleman and a mature and fair physician and above all a team man. I ask that you be patient and understanding. Help me to help you in every possible way. Help us to have a better group and to be better physicians.
"[19.] I bid you a hearty welcome and am glad you are with us. Sincerely yours,
(/s/) Needham B. Bateman M. D. Needham B. Bateman M. D. Read and approved:
(/s/) Arthur A. McMurray M. D. October 24, 1962
Date
"P. S. [20.] In case I am removed from practice, it is my desire that you, through the trustee of my Estate, carry on the work and expansion as nearly as it has been planned as is possible —
NBB"
The defendant filed his general demurrer and answer to the petition. The answer denied all of the material allegations of the petition, except that the defendant resided in Fulton County, that the plaintiff owned the building and the equipment of the Forest Park Clinic and that used by the plaintiff and his employees at the Georgia Baptist Professional Building, and that the defendant signed the contract the suit was brought to enforce. The answer specifically denied the plaintiff performed the contract and, further answering, alleged: that the defendant was presented the letter (contract) "after he had moved his family and personal belongings from Wichita Falls, Texas, to Atlanta, Georgia, at an expense of over $700.00, after the defendant had enrolled his children in the local school, and after a year's lease had been signed on a home in Atlanta, Georgia, for defendant and his family. Therefore, defendant was compelled to execute the said letter, not of his own free will and accord, but under duress and further, he received no additional compensation or consideration for the execution of said letter." The answer also set out that assuming the exhibit attached to the petition was a contract, which the defendant denied, such exhibit should be declared null and void because:
"(a) It was not executed by the defendant voluntarily but was executed by him under duress as specified herein;
"(b) That said letter constitutes an unlawful restraint of trade in that it deprives the defendant of his freedom to practice his profession in the field in which he has acquired a special skill;
"(c) That said letter is so broad and comprehensive in its restriction upon the rights of the defendant, while posing no restrictions upon the rights or activities of the plaintiff, as to constitute a penalty against the defendant which is contrary to public policy for the courts of this State to enforce.
"(d) That said alleged contract has been breached in the fact that defendant's opinions were completely disregarded; that plaintiff decreased the hours in which defendant had access to patients' calls to a maximum of forty-three hours per week, thereby permitting patient requests for defendant to be diverted to plaintiff or to the Jonesboro Hospital Center; that defendant was not allowed access to the financial ledgers of the association even though his profits from the association were based upon a percentage of the amount that he placed upon the books, less operating overhead."
On March 26, 1965, the trial court overruled the defendant's general demurrer and the matter proceeded to interlocutory hearing. The evidence in the case consisted of the testimony of the plaintiff and the defendant, the contract which was the basis of the suit and a map showing the cities and towns throughout a radius of 50 miles from Forest Park, from which the plaintiff alleged his patients came.
The plaintiff testified that his practice extended to the towns marked on the map above mentioned, in that he had a patient or patients who came to him from each of the cities and towns designated on the map. He testified generally that his patients came from the 50 mile radius of Forest Park, but that about 75 or 80 percent of his practice was from the area of metropolitan Atlanta or "the five-county area." He denied the defendant had begun working for him when the contract was signed. He testified the defendant was paid on the basis set out in the contract and never made any complaint concerning his compensation. The fact that he had no associates and that he alone was practicing as the Forest Park Clinic was admitted by the plaintiff, but he further swore the defendant knew this when he signed the contract. He further tacitly admitted that he did not permit the defendant to do surgery during the last two months they were associated together, but explained this by relating the defendant was in a state of nervousness and tension. He did not positively give this as the reason for not allowing the defendant to operate, but in answer to the question why he did not permit the defendant to do surgery during that time, the explanation was made as above stated.
The plaintiff did testify that the defendant had access to the books of the clinic upon which the credits for his work were entered. The plaintiff's whole evidence showed he had fostered a dream of forming a group of doctors with him as the head physician since the early years of his practice, and for a short time there was such a group but that it had long since dissolved. He expressly stated he was the Forest Park Clinic group, hence was its head, and that he had never given the defendant permission to practice medicine and surgery within the territory described by the contract. Other facts testified to by him were not of sufficient materiality to require their recital here.
The defendant testified that he carefully read the contract the suit was brought to enforce before signing it; that he delayed several days before signing it; that he had originally had an oral contract with the plaintiff and was sure he had begun practicing with him before signing the contract; that he noticed there was a restrictive covenant in the contract that in the event the contract was terminated he was not to practice surgery or medicine within a 50-mile radius; that he was presently practicing in the City of Atlanta, within the 50-mile radius. The defendant testified that 95 percent of the patients he saw at Forest Park Clinic or the Baptist Professional Building, while associated with the defendant, would, as accurately as he could figure, come from within a five-county radius of Forest Park and the other five percent was composed of transients, except a few from Decatur and that practically all came from metropolitan Atlanta. He explained that the circumstances under which he signed the contract were that he was from Texas; that he wanted to get his children in school before the fall term opened; that he entered into a verbal contract with the plaintiff, which was the basis for setting up practice here. He had already placed his children in school and leased a dwelling house when the plaintiff presented the written contract to him; that he signed the contract on October 24, 1962, after the time he moved his family to Atlanta, and that this was the reason he signed the contract; that during the past two months there was an effort on the plaintiff's part to "diverse [sic] as much traffic, that being the services to patients, to the Jonesboro Hospital Center"; that he was limited to 43 hours per week practice; that he estimated the normal physician works 56 hours per week but it varied considerably; most of the physicians average more than 43 hours. He testified he had five children.
He then gave the following testimony: that he entered into an oral agreement with the plaintiff the last week of August; that he found out about the position through an advertisement, a placement service provided by the American Medical Association; that he was in Tennessee completing his training in order to qualify for the American Board of Surgeons; that verbal representations were made to him by the plaintiff to the effect that the plaintiff had "several men in with him who had faulty habits and were not suitable for his practice." As to the plaintiff's performance of the contract, the defendant testified: "I think the plaintiff did so within his capacity."
On April 16, 1965, the trial court entered its order restraining and enjoining the defendant as prayed, such injunction to be effective four months from the date of the order. The bill of exceptions assigned error on the overruling of the defendant's general demurrer to the petition and on the order granting the injunction, in this language: "to said order and judgment granting said temporary injunction, the defendant then and there excepted and now excepts and assigns same as error as being contrary to law and contrary to the evidence because there was no evidence adduced at the interlocutory hearing which authorized the grant of such injunction against defendant and said order constituted an abuse of discretion by the trial court. There was no evidence adduced at the interlocutory hearing to support the allegations of plaintiff's petition, and a judgment was demanded denying plaintiff the relief sought."
In this court the defendant, as plaintiff in error here, contends the trial court erred:
(1) In overruling the defendant's general demurrer to the plaintiff's petition, as the plaintiff's petition shows on its face that his alleged cause of action and right to such injunctive relief is predicated upon a purported "written contract," which paper is so lacking in certainty and mutuality as to render it void and unenforceable as a contract;
(2) In overruling the defendant's general demurrer to the plaintiff's petition as such petition shows on its face that the plaintiff has no cause of action against the defendant, and, consequently, the lower court's order overruling such general demurrer was contrary to law; and
(3) In granting the plaintiff's prayer for injunction as the restrictive covenant upon which it is founded is not binding upon the defendant, is unreasonable and no evidence was adduced at the interlocutory hearing to support the same, and, consequently, the granting of such injunction constituted an abuse of discretion by the trial court and was contrary to law and to the evidence.
1. The defendant, plaintiff in error here, contends his general demurrer should have been sustained because the contract between the parties, made a part of the petition and upon which the plaintiff's cause is based, is unilateral and unenforceable. A contract is unilateral in the sense that renders it invalid "when one party to it is bound and the other is not, or when one party gets something and the other nothing." Lowery Lock Co. v. Wright, 154 Ga. 867 (1e) ( 115 S.E. 801). While "a promise of another is a good consideration for a promise" ( Code § 20-304), "`the promise in each instance must be of such a character as to be capable of enforcement against the party making it, as otherwise neither party will be bound. It must be sufficiently definite both as to time and subject matter.' McCaw Manufacturing Co. v. Felder, 115 Ga. 408, 411 ( 41 S.E. 664). Unless the promises are of such character, the contract based solely on consideration thereof is unilateral and not binding." Pepsi-Cola Co. v. Wright, 187 Ga. 723, 727 ( 2 S.E.2d 73), and cases therein cited. "The test of mutuality is to be applied as of the time the contract is to be enforced; and if the promisee accomplishes the object contemplated, then the promise is rendered valid and binding.' Hall v. Wingate, 159 Ga. 630, 652 ( 126 S.E. 796)." Breed v. Nat. Credit Assn., 211 Ga. 629, 632 ( 88 S.E.2d 15).
These rules above mentioned apply to executory not executed contracts. Measured by the standards they provide, we think the contract was not unilateral, because it imposed reciprocal obligations binding up both parties and stipulated substantial benefits were to flow to each of them. However, we here deal with an executed contract performed by the parties for two years and three months and as to contracts of that nature the rule is pronounced in Brown v. Bowman, 119 Ga. 153, 156 ( 46 S.E. 410): "In Hammond on Contracts, 683, it is said: "The test of mutuality is to be applied, not as of the time when the promises are made, but as of the time when one or the other is sought to be enforced. A promise may be unenforceable for want of mutuality when made, and yet the promisee may render it valid and binding by supplying a consideration on his part before the promise is withdrawn.' This doctrine is well settled by many adjudged cases cited by the above-named text-writers, and has been fully recognized by this court."
Regarding the contract in the present case, if there had originally been a lack of mutuality in its provisions, the deficiency would have been supplied by performance.
2. The defendant insists his demurrer should have been sustained because the petition disclosed the contract between the parties, reference to which is made in the preceding division, is too incomplete and indefinite to be enforceable. The document was primarily an employment contract and possessed all of the requisites of a contract of that nature expressed in reasonably certain terms. It designated, as we construe it, the defendant's place of employment, the period for which he was employed, the nature of the services he was to render and the compensation he was to receive.
While the contract contains no express promise that the defendant's place of employment would be the Forest Park Clinic and the Georgia Baptist Professional Building, the contract is explicit that he was to come and practice with the plaintiff and that the latter's practice was conducted at the places mentioned. The contract stipulates services, those incident to the practice of medicine and surgery, and that his compensation is to be arrived at according to an understandable formula, which reads: "The overhead for our group, when we are fully staffed, and for similar groups in the United States runs about 50%. We collect about 90% of what is put on the books. Therefore, the 10th of each month you shall receive 50% of the money collected on the work you do or 45% of what you place on the books for the past month. If at the end of the year we can reduce our overhead and raise our percentage of collections you shall, of course, receive an additional check giving you payment in full of all money cleared on your work. In figuring the amount of work you place on the books you shall receive full credit for all office work, (including Lab. and X-ray fees) and the same for the occasional home call you might make plus 50% of all patients we (you and I) admit to the hospital for surgery, treatment or diagnosis."
In reaching this conclusion we have considered the epitome of reasons the defendant contends the terms of the contract were incomplete and indefinite. He points out two provisions of the contract as indicative of its incompleteness: (1) "In the event anything arises not covered in this agreement nor already covered by precedent it shall be decided on the basis of the spirit herein contained and the Golden Rule, plus accepted Christian principles." (2) "Trips, vacations, outside study, time off, etc. to be arranged by mutual consent."
The former really has no legal significance. It is merely a statement that the contract may be altered by subsequent agreement of the parties. This is, as a matter of law, generally true of contracts, where the interest of a third party is not involved. The latter provision does not concern the essential elements of the contract, but simply provides that customary details concerning its performance will, from time to time, be determined by mutual consent of the parties. A contract is not usually incomplete because minor details incident to the performance of its terms are left to be agreed upon. This principle is recognized in Prior v. Hilton Dodge Lumber Co., 141 Ga. 117 ( 80 S.E. 559). "A contract of which the obligations are mutually binding upon the parties thereto is not rendered unilateral merely because matters concerning the details of performance are left to the option of one of the contractors." Seabrook Coal Co. v. Moore, 25 Ga. App. 613 (2) ( 103 S.E. 839); 17 Am. Jur.2d 363, Contracts, § 27.
The defendant further contends that the contract is incomplete because it does not stipulate whether the plaintiff is to provide office space, secretarial services or other facilities for the practice of medicine, and did not define what was meant by "overhead" expenses. We think the letter embodying the contract and the terms of the contract made it clear that the defendant was to practice as the plaintiff's employee and associate at the Forest Park Clinic and this carries with it the inescapable conclusion that he was to have office space, and the use of the clinic's facilities. The term "overhead" is not defined. It was not necessary that the contract define words that are commonly used in the connection of the conduct of business or the practice of professions. "Overhead" has a connotation generally understood. It means those expenses incidental or incident to the practice of a profession. Rivers v. Atlanta Southern Dental College, 187 Ga. 720, 722 ( 1 S.E.2d 750). It is impossible to stipulate accurately in advance what will constitute such overhead expenses because from their very nature they depend upon contingencies occurring in the course of practice generally not predictable or certain.
But had there been any deficiency in the provisions of the contract, according to the petition it was fully performed over a period of two years and three months. Hence, the contract was, if aught was lacking, made certain and complete. In Thomas v. Coastal Industrial Services, 214 Ga. 832 (1) ( 108 S.E.2d 328), it is held: "Even though the agreement does not disclose what salary the defendant was to be paid or the length of time he was to be employed by the plaintiff, and despite the fact that the defendant was already employed by the plaintiff at the time the agreement was entered into, mutuality and sufficient consideration to vitalize the ancillary agreement were supplied by performance under the agreement." Griffin v. Vandegriff, 205 Ga. 288, 294 (2) ( 53 S.E.2d 345); Breed v. Nat. Credit Assn., 211 Ga. 629, 632, supra.
3. The defendant insists his general demurrer should have been sustained because the restrictive covenant the suit is brought to enforce is unreasonable and oppressive in that the scope of the defendant's activities restricted by the covenant is broader than is necessary for the plaintiff promisee's protection. His brief predicates this contention upon the assertion that from the Code definition of what constitutes the practice of medicine "it is apparent that the restrictive covenant in this case would absolutely prohibit the plaintiff in error from practicing medicine or surgery not only as a sole practitioner and/or as a partner with another physician or physicians, but also as an industrial physician, as a Health Department physician for the Federal, State or local governments and as a resident physician seeking further training with a teaching institution."
The crux of the contention is that the covenant was designed solely to prevent the defendant from becoming the plaintiff's competitor, and the covenant as drawn excludes the defendant from non-competitive fields of practice. Hence, the clause is oppressive and unreasonable. We have read the covenant and compared it with the provisions of Code § 84-901 which state: "The terms `practice of medicine,' `to practice medicine,' `practicing medicine,' and `practice medicine,' as used in this Chapter, are hereby defined to mean holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever, or the maintenance of an office for the reception, examination and treatment of persons suffering from disease, defect or injury of body or mind." The definition seeks to encompass the practice of surgery. The practice of medicine as defined in the Code section and as restricted by the covenant is competitive and its enforcement necessary to the promisee's protection; provided it is for no other reason invalid. In this connection it will be observed similar covenants in the cases of Rakestraw v. Lanier, 104 Ga. 188 ( 30 S.E. 735, 69 ASR 154), and Burdine v. Brooks, 206 Ga. 12 ( 55 S.E.2d 605), were upheld.
4. The defendant further maintains his demurrer should have been sustained because the restrictive covenant, to which reference has been made, was patently oppressive and unreasonable in that it embraces more territory and is for a longer period of time than is necessary for the plaintiff promisee's protection.
The territorial limitation of the covenant was, according to precedents set by this court, not too broad if the territory included was that throughout which the plaintiff generally practiced, although not necessarily in every part of the area included ( Orkin Exterminating Co. v. Mills, 218 Ga. 340, 342 ( 127 S.E.2d 796), including territory over which he had reasonable prospects of extending his practice. Hood v. Legg, 160 Ga. 620, 629 ( 128 S.E. 891); Thomas v. Coastal Industrial Services, 214 Ga. 832, supra.
The petition alleged: that the plaintiff had built up one of the largest medical practices in Georgia; that he has thousands of patients who reside throughout a geographical area defined as being within a 50-mile radius of Forest Park, including patients in 88 named cities and towns; that a study by him had determined that the majority of new patients came to him on referrals and recommendations of other patients.
A covenant not to practice medicine may be for a much longer time than stipulated in the present contract. In the case of Burdine v. Brooks, 206 Ga. 12, supra, a partial restriction of the practice of medicine in a certain locality was for ten years. We see no rational distinction in so far as the length of time that one may be permitted to continue in the practice and a covenant completely restricting the practice of a learned profession. But if the Burdine case left the matter in doubt the case of Rakestraw v. Lanier, 104 Ga. 188, 202, supra, held such restrictions may be for the life of the promisee or "to the time in which he was engaged in the practice of his profession" within the territorial limits agreed upon. The restrictive covenant in the present case can not be held oppressive or unreasonable.
5. Finally, the defendant contends the petition discloses the plaintiff had no right to institute the suit. This contention is predicated upon the failure of the petition to allege that the plaintiff did not agree to the defendant's practicing medicine in the restricted area, to allege that "the senior member of the group" did not so agree, and does not allege the identity of the "senior member" nor of whom the "group" consisted.
The contract provides: "In the event of separation you agree not to engage in the practice of medicine or surgery within a radius of 50 miles of Forest Park, Georgia, for a period of three years unless agreed to by me or the senior member of the group in writing at the time of your separation." The condition that the written consent be given is a condition subsequent. Code § 20-110. A good example of the effect of a condition subsequent is found in Scott v. Hall, 56 Ga. App. 467 (1) ( 192 S.E. 920). The right to bring the suit occurred upon the dissolution of the relationship of the parties, subject to be defeated in the event the written consent was given.
However, without regard to the principle stated, the petition alleges the plaintiff fully complied with the contract, and it could be reasonably inferred from the allegation that "the plaintiff has given the defendant written notice that if he continues to violate said restrictive covenant, legal action will be instituted," also contained in the petition, that the consent that the defendant practice within the restricted area was not given.
6. The evidence summarized in the foregoing statement of fact authorized the grant of the temporary injunction.
Judgment affirmed. All the Justices concur.