This is an action brought by appellants, seeking to restrain respondent from engaging in the practice of medicine and surgery within the County of Bonneville, Idaho, for the period of five years from and after the 8th day of June, 1951. Among other allegations in their complaint, are the following:
It is also alleged in the complaint that pursuant to said contract of employment the defendant on or about the 15th day of July, 1949, entered the employ of said Idaho Falls Clinic and thereafter continued in said employment. That on the 18th day of April, 1951, respondent notified appellants that he intended to quit and terminate his employment and intended to open an office in the City of Idaho Falls, in Bonneville County, and to engage in the practice of medicine and surgery therein. And that respondent did leave his employment by the copartnership on the 8th day of June, 1951, and ever since has been engaged in the practice of medicine and surgery in Bonneville County contrary to the provisions of said agreement.
Respondent filed a general and special demurrer to said complaint. The general demurrer was by the court sustained. Appellants elected to stand upon their complaint and judgment of dismissal of the action was entered. From such judgment, appellants appeal to this court.
Under his general demurrer, respondent contends, first, that "the withdrawal of Hulse, the death of Dr. Abbott, each operated to dissolve the partnership, terminating the employment contract with respondent. Further services of respondent were furnished on an implied contract." This contention is made in connection with the provision in the contract that if the same be terminated by the parties of the first part for any cause other than failure of party of the second part to comply with the provisions of the agreement, then the agreement not to engage in the practice of medicine and surgery for a period of five years in Bonneville County is not to apply. And, second, respondent contends that the contract was void and contrary to public policy in that one of the partners in the Idaho Falls Clinic was a layman and that the contract provides for the practice of medicine and surgery by a layman through a licensed employee, and by respondent as an employee of a layman.
The trial court apparently sustained the demurrer on the first contention of respondent. However, we are concerned only with the ruling of the trial court sustaining the demurrer and dismissing the action, not the grounds upon which the ruling was made. If the demurrer was good upon either of the grounds stated, the ruling of the trial court must be sustained
It is well established that no unlicensed person or entity may engage in the practice of the medical profession through licensed employees; nor may a licensed physician practice as an employee of an unlicensed person or entity. Such practices are contrary to public policy. State v. Boren, 36 Wn.2d 522, 219 P.2d 566, 20 A.L.R.2d 798; State v. Bailey Dental Co., 211 Iowa 781, 234 N.W. 260; People v. Painless Parker Dentist, 85 Colo. 304, 275 P. 928; Bebber v. Fisher, 106 Colo. 197, 102 P.2d 741; Painless Parker v. Board of Dental Examiners, 216 Cal. 285, 14 P.2d 67; Pacific Employers Ins. Co. v. Carpenter, 10 Cal.App.2d 592, 52 P.2d 992 and cases collected and cited therein; In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157, 73 A.L.R. 1323; Note 103 A.L.R. 1240.
Appellants do not contest the foregoing rules but urge it may be inferred that the duties of the partner Hulse were confined to those of office manager and that he at no time ever performed any of the functions of a licensed physician and surgeon; and that any claim that Hulse exercised any direction or control over the professional work of respondent would be a matter of defense. Appellants cite, in support of their contention, Messner v. Board of Dental Examiners, 87 Cal.App. 199, 262 P. 58, 60. However, in that case the court was dealing with a statute which prohibited an unlicensed person from managing a dental office. The court held that it appeared from the evidence that the layman, Cohn, an employee, had charge of the purely business end of the dental office in question, but that there was no evidence he had or exercised the slightest control or direction of the professional work performed in such office. The court further said, "Had it been shown that Cohn had authority to participate in the employment or discharge of those engaged to do professional work and the fixing of their compensation a different question would arise. The power to hire and discharge and to fix the compensation of an employee necessarily implies the power to control his work. But no such power is shown to have been given Cohn."
The partner Hulse, not only was business manager of the Idaho Falls Clinic, but had his rights and duties as a member of the copartnership. He had a voice and vote in the employment of respondent and the remuneration to be paid him. Also, the contract of employment contains the following provision:
The position of Hulse was that of a layman attempting to practice medicine through a licensed employee. Painless Parker v. Board of Dental Examiners, supra.
While it might appear that the parties acted in good faith and that no particular injury resulted to the public, this court has laid down the rule as to the test to be applied to such contracts in Stearns v. Williams, 72 Idaho 276, 240 P.2d 833, 837;
Appellants seem to take the position that respondent, having continued in the employ of the partnership after the retirement of Hulse, is estopped to challenge the contract of employment or its continued existence. It is well established that if a contract is void as against public policy, the courts will refuse to enforce the same and will leave the parties in the identical situation in which it finds them, and the contract cannot be treated as valid by invoking estoppel. A. C. Frost & Co. v. Coeur d'Alene Min. Corp., 61 Idaho 21, 98 P.2d 965; Id., 312 U.S. 38, 61 S.Ct. 414, 85 L.Ed. 500; Deer Creek H. Dist. v. Doumecq H. Dist., 37 Idaho 601, 218 P. 371; McFall v. Arkoosh, 37 Idaho 243, 215 P. 978; Libby v. Pelham, 30 Idaho 614, 166 P. 575.
In Reno v. American Ice Mach. Co., 72 Cal.App. 409, 237 P. 784, at 785, we find the following language:
We conclude that the trial court properly sustained respondent's demurrer to the complaint of appellants and did not err in entering judgment of dismissal. Judgment affirmed. Costs to respondent.
GIVENS, C. J., and TAYLOR and THOMAS, JJ., concur.
KEETON, J., dissents.