9 Ind. App. 474 | Ind. Ct. App. | 1894
The appellee, in his complaint, says that at the time at which the services for which he demands payment were made he was a physician and surgeon, residing at Sharres Crossing, in Mercer county, in the State of Ohio; that he was called upon to go to the relief of one John Long, a poor person, living in Blue Creek township, in Adams county, in the State of Indiana; that the said Long was suffering from a broken leg; that it was necessary to amputate said leg as soon as it could be done, in order to save the life of the said Long; that appellee arrived at the house of said Long about dark on the evening of July 23,1886; that the attending physician had caused appellee to be sent for on account of his particular skill as a surgeon, in consultation with said attending physician; that it was much nearer to the residence of appellee than to that of any other competent surgeon who had the instruments and skill necessary to perform said amputation; that it was a distance of six
A demurrer to this complaint was overruled.
An answer was then filed, consisting of a general denial and several special pleas. On the overruling of a demurrer to the third and fourth paragraphs of the answer, a reply was filed in general denial.
The cause was then submitted for trial to a jury, which returned a verdict for appellee in the sum of one hundred and twenty-five dollarsv
Counsel for appellant, however, argue very earnestly that the complaint is insufficient, inasmuch as it shows that appellee had no license to practice medicine in the county of Adams, as required by the act approved April 11, 1885, regulating the practice of medicine and surgery in this State. R. S. 1894, sections 7318-7323.
Counsel for appellee, on the other hand, gravely contend that because the appellee was not in the habit of practicing his profession in the county of Adams, therefore the amputation in this case, and the visits and dressing of the wound from July 24 to August 12, 1886, did not amount to a practicing of medicine and surgery in that county, in the sense contemplated by the statute.
If this contention were correct, the statute would be little more than a dead letter. The practice of medicine and surgery consists in the application of science, skill and experience to the cure or alleviation of the ailments of the human body; and whether a physician exercises his skill upon one patient or upon a greater number, he is in each case engaged in the practice of his profession.
This statute requires every physician or surgeon, desiring to practice his profession in this State, to procure a license therefor, and section 7322 enacts, in so many words, that “No cause of action shall lie in favor of any person for services as physician, surgeon, or obstetrician who had not, prior to the rendition of such services, procured a license to practice as herein provided for.”
This statute has been upheld by several decisions of the Supreme Court. Eastman v. State, 109 Ind. 278;
According, then, to the letter of .the law, strictly and literally interpreted, the appellee could recover nothing.
Courts are not, however, always required to give full force to the exact letter of the law, but are oftentimes permitted, nay, more, required, to relax somewhat the rigor of an exact compliance. Schmidt v. State, 78 Ind. 41; City of Evansville v. Summers, 108 Ind. 189.
In Parish v. Foss, 75 Ga. 439, a recovery was allowed for services rendered without registration, w'here the physician registered as soon as he could.
So far as the amputation itself is concerned, the complaint shows that it was sixteen miles to the county seat, and that the appellee did not have time to ¥go to the clerk’s office to procure a license without endangering the life of the patient; “that there was a pressing emergency and an urgent necessity to amputate the said leg as soon as it could be done, in order to save the life of the said Long.” This is, we think, one of those exceptions contemplated in the case of Orr v. Meek, Admr., supra, where the court said: “It may be that there are cases where the courts would hold that the statute does not apply in its full rigor, as where there is an emergency demanding prompt action,” etc.
To hold that appellee’s conduct, thus far, was within the inhibition of the statute, would be the extreme of inhumanity.
This does not, of course, justify the appellee in continuing his attendance upon his patient day after day without procuring a license for the practice of his profession in Adams county, but it does show that he was entitled to some relief; and the complaint must, therefore, be held good.
Among the instructions to the jury complained of is
We are satisfied that by this charge the learned judge gave to- the jury altogether too wide a latitude in the interpretation of the law. It is the duty of the courts to uphold, not to weaken, the acts of the Legislature, when such acts are not in conflict with the constitution. But to sustain this instruction would be to break down a wise statute intended to protect the people of the State against quacks and other irresponsible, incompetent physicians. It is better that competent physicians should suffer some inconveniences than that the door should be opened wide for the incompetent.
If a physician may safely practice his profession without a license, because some one, wise or unwise, judges him to have special qualifications for the treatment of certain ailments, and “the call is made because of some special skill or ability of the physician in a particular branch of his profession,” then there will remain few practitioners in all the land who may not utterly disregard
The law does not require what is unreasonable or impossible, and we think that the appellee was entitled to compensation for the amputation, even though he did not have a license, if rendered in the emergency alleged; but he was entitled to no compensation for his after services, for which there was ample time to procure a-license as required by law. The right to recover is not to be extended beyond the necessities of the actual emergency. People v. Lee Wah, 71 Cal. 80; Terre Haute, etc., R. W. Co. v. McMurray, 98 Ind. 358; Toledo, etc., R. W. Co. v. Mylott, 6 Ind. App. 438, 33 N. E. Rep. 135.
With the views which we have expressed as to the law applicable to this case, the instruction was .erroneous under any evidence admissible under the issues. The absence of the evidence does not, therefore, make the error unavailable. Thornton on Juries, section 203; Rapp v. Kester, 125 Ind. 79.
The judgment is reversed, and the cause remanded, with instructions to grant a new trial, and for. further proceedings in accordance with this opinion.