67 Ill. 75 | Ill. | 1873
delivered the opinion of the Court:
We perceive no defect in the declaration. The contract between the parties is set out in liceo verba. By it one party agreed to sell to the other a lot and house for the consideration, expressed in the writing, of two thousand dollars, and it concluded with this clause: “And the party of the first part being a practicing physician, he also agrees to sell and include in the aforesaid premises and sale, his practice; and he hereby obligates himself not to establish nor to attempt to establish a medical practice within the aforesaid township of Chili, nor within six miles of his present residence.” It is also averred in the declaration, that both parties were practicing physicians.
The chief objections are, that the restraint imposed was unreasonable, and that there was no valuable consideration. . The rule is well settled that any partial restraint of trade, or an agreement not to transact business at specified places, or with particular persons, or beyond a limited distance, or not to practice medicine within reasonable bounds, if there be some legal consideration for the restraint,, will not invalidate the agreement. If there is a reasonable limitation only, and a consideration capable of supporting the agreement, it will be upheld. Courts will not inquire whether the consideration was adequate or equal in value to that which the party loses by the restraint. The contract must be construed by the court, and its reasonable character and the consideration for it determined. Chitty Con. 664; Mitchell v. Reynolds, 1 Peere Williams, 181; Horner v. Grams, 7 Bing. 735; Hitchcock v. Coker, 6 Ad. and Ellis, 438; Pike v. Thomas, 4 Bibb, 486; Pierce v. Woodward, 6 Pick. 206; Chappell v. Brockway, 21 Wend. 156; Bowser v. Bliss et al. 7 Blackford, 344.
In this case the limitation was reasonable, as the practice was only prohibited in an area of six miles in all directions from the property purchased. There were good reasons which induced the contract, and there was a legal consideration. The agreement must be construed so as to make the two thousand dollars paid a consideration for the promise not to attempt to establish a medical practice within the restricted territory, as well as for the house and lot. The contract was an entirety, and is susceptible of no other construction.
There was, however, error in the admission of the testimony, for which the judgment must be reversed.
The court permitted witnesses for plaintiff to give an opinion as to the amount of damages resulting from the resumption of practice by the defendant. The witnesses called for this purpose were physicians. The facts of the case did not bring them within the class of experts, and we can conceive of no principle which justified the admission of the testimony. In general, the opinions of witnesses are not evidence. Experts, or persons instructed by experience, “ men of science,” as Lord Mansfield called them in Folkes v. Chadd, 3 Douglas, 157, may give opinions upon questions of science, skill or trade, as, to the sea-worthiness of ships, or their unskillful navigation, the genuineness of hand-writing, the cause of disease and of death, the consequences of wounds, the sanity or insanity of a person’s mind, or others of a like kind.
The rule is thus stated in the note to Carter v. Boehm, 1 Smith’s Leading Cases, 286: “ On the one hand, it appears to be admitted that the opinion of witnesses possessing peculiar skill, is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance ; in other words, when it so far partakes of the nature of a science as to require a course of previous habit or study, in order to the attainment of a knowledge of it.”
Opinions of witnesses are not competent as evidence when the inquiry is into a subject matter, the nature of which does not require any peculiar habits or study or scientific knowledge to understand it. The opinion's of the physicians were not only unnecessary to enable the jury to ascertain the damages sustained, but were highly improper. If they did not have a knowledge of the facts, the sickness and the practice performed by the defendant, an opinion was a mere guess. If they had such knowledge, from a detailed statement of the facts the jury could have assessed the damages. All the facts bearing upon the question of damages should have been laid before the jury, and they would have been fully competent to fix the amount of the verdict without the aid of the opinions of others. Ramadge v. Ryan, 9 Bingham, 333; Norman v. Wells, 17 Wendell, 136-162.
The ninth instruction should therefore have been given for the defendant, that the jury should disregard the mere opinions of witnesses.
We are of opinion that proof might have been properly submitted as to the general professional standing of the plaintiff, as a physician, within the prohibited area; but not whether particular persons would have employed him. The inquiry should only be as to his general character as a physician. This would not, as supposed by counsel for appellee, involve his character for truth, charity, religion, or honesty, but merely his general reputation as a physician—his capacity and fitness to practice medicine. The question should be, what was his general character as to his capacity and fitness to practice his profession ? If he had no general reputation in this regard, the fair inference would be that he had not sustained much damage. If there was only a possibility that he could- have obtained practice, his loss could only be nominal. His general character, as a physician, was a proper subject for the consideration of the jury. In defense of any such attack of his general professional standing, he should be, allowed to offer proof of his general reputation, as a physician, either within the prohibited area, or elsewhere.
The judgment is reversed and the cause remanded.
Judgment reversed.
