88 P. 788 | Mont. | 1907
delivered the opinion of the court.
This action was brought by Dr. A. C. Leggat to recover a balance of $100 for professional services rendered for the defendant. The action appears to have originated in the justice of the peace court. In the district court it was tried to the court sitting without a jury, a jury having been expressly waived. The court made findings of fact and conclusions of law in the plaintiff’s.favor, and rendered judgment that he recover from the defendant the sum of $100, with interest thereon from May 26, 1902. From an order denying defendant a new trial, this appeal is prosecuted.
1. There does not appear to have been any objection that the complaint does not state facts sufficient to constitute a cause of action, urged in the trial court. There is not any appeal from the judgment. The appeal is from the order denying the defendant a new trial, and on such appeal the question of the insufficiency of the complaint to state a cause of action cannot be raised unless it was properly raised in the district court. (Schatzlein Paint Co. v. Passmore, 26 Mont. 500, 68 Pac. 1113; Campbell v. Great Falls, 27 Mont. 37, 69 Pac. 114.)
2. It is urged that the evidence is insufficient to sustain the decision of the court, in that there was not any evidence offered on behalf of the plaintiff to show “that the plaintiff holds a certificate granted by the state medical board of the state of Montana, entitling him to practice medicine.” If the fact affirmatively appeared that, at the time the services were rendered, the plaintiff did not have a certificate, then the question of his right to recover would be raised directly. But, as that fact does not appear, the only question presented here is: Upon whom rests the burden of proof? Was the burden upon the plaintiff in the first instance to show that he had such certificate? Or was it upon the defendant to show that he did not have it? The testimony given at the trial on behalf of the plaintiff by the witness Kremer is as follows: “I knew Dr. Leggat at that time, and I can state that I knew him to be a physician and surgeon in the city of Butte, and at that time was the city physician."
After a careful review of the authorities the court of appeals of Illinois, in Williams v. People, 20 Ill. App. 92, said: “Where the question of license or qualification of a physician arises collaterally in a civil action between party and party, or between the doctor and the one who employed him, then the license or due qualification under the statute to practice will be presumed. (McPherson v. Cheadell, 24 Wend. 15; Thompson v. Sayre, 1
While there is some conflict in the decisions, the decided weight of authority seems to be in favor of the rule stated above in Williams v. People. (McPherson v. Cheadell, 24 Wend. 15; Jo Daviess County v. Staples, 108 Ill. App. 539; Lacy v. Kossuth County, 106 Iowa, 16, 75 N. W. 689; Dickerson v. Gordy, 5 Rob. (La.) 489; Lyford v. Martin, 79 Minn. 243, 82 N. W. 479; Cather v. Damerell (Neb.), 99 N. W. 35; Rider v. Ashland County, 87 Wis. 160, 58 N. W. 236; Good v. Lasher, 99 Ill. App. 653.) The same general rule is recognized by the court of appeals of Indiana in Cooper v. Griffin, 13 Ind. App. 212, 40 N. E. 710, but, by reason of a special statute in that state, the contrary rule is upheld.
A somewhat analogous question is presented in an action brought in a court of this state by a foreign corporation. It has been held that it is not necessary for the foreign corporation to prove, in the first instance, that it has complied with the laws of this state entitling it to do business here. (Zion Co-op. Merc. Assn. v. Mayo, 22 Mont. 100, 55 Pac. 915; Thompson on Corporations, sec. 7965; Langworthy v. Garding, 74 Minn. 325, 77 N. W. 207.)
In view of the testimony given by the witness Kremer as set forth above, we think the presumption follows that Dr. Leggat had complied with the law, and that the burden of proof was upon the defendant to show that he had not done so. In the absence of any attempt on the part of the defendant to make this proof, we think the evidence is sufficient to sustain the decision of the court.
Not finding any error in the record, the order denying defendant’s motion for a new trial is affirmed.
Affirmed.