297 N.W. 906 | Neb. | 1941
This is a suit brought by the attorney general to enjoin the defendant, Roy Jackson Gable, an osteopathic physician, from engaging in the practice of medicine and operative surgery within this state and from publicly professing to be a physician, surgeon, or obstetrician. The defendant filed an answer in which he denied that he had ever engaged in the practice of medicine, or professed publicly any right to do so. He alleges, however, that he is an osteopathic physician, surgeon and obstetrician and asserts a right to engage in the practice of operative surgery and obstetrics and to hold himself out to the public as one qualified to do so. The attorney general thereupon moved for a judgment on the pleadings, which was overruled by the trial court, and a judgment entered in favor of the defendant. The state thereupon appealed.
The question whether the defendant may lawfully engage in the practice and dispensing of medicine is not an issue on this appeal.' Whether defendant may lawfully engage in the practice of operative surgery and obstetrics and engage in the use of anesthetics in the manner alleged in defendant’s answer are the questions presented by the motion for judgment on the pleadings. The correctness of the trial court’s ruling on this motion is the controlling factor in this appeal.
The defendant alleges that he is a graduate of the American School of Osteopathy at Kirksville, Missouri, a school of osteopathy recognized by the American Osteopathic Association. On June 13, 1922, defendant was issued a license to practice as an osteopathic physician and surgeon by the department of public welfare of the state of Nebraska. The answer admits and alleges that defendant has performed surgical operations, including tonsillectomies, appendectomies, circumcisions, an amputation of a toe, rectal
It cannot be questioned that a person engaging in the practice of medicine and surgery without the required statutory license may be restrained by injunction. Comp. St. 1929, sec. 71-801. If, therefore, the admissions and allegations of defendant’s answer constitute the practice of medicine and surgery as defined by section 71-1401, Comp. St. 1929, the defendant should be enjoined from so doing. If said acts are within the scope of the practice of osteopathy as defined by our statutes on the subject, the defendant is then within his rights and not subject to restraint for so doing.
The question is raised whether the character and general duties of occupations classed as professions are determined as questions of law or fact. We think the rule is that they are questions of fact of which the courts will take judicial notice. Certainly, the question whether a specific act constitutes the practice of osteopathy is not subject to proof by expert witnesses. The absurdities which would be certain to follow such a construction of the rule in question are too obvious to require an exposition here. The general rule of pleading, which admits as true all facts well pleaded upon the filing of a general demurrer or a motion for a judgment on the pleadings, has no application to facts of which a court may take judicial notice, and such demurrer or motion does not therefore admit a conclusion of law deduced from such facts.
The general rule seems to be: “There is apparently no dissent from the proposition that in the consideration of a pleading the courts must read the same as if it contained a statement of all matters of which they are required to take judicial notice, even when the pleading contains an express allegation to the contrary.” Chavez v. Times-Mirror
Applying this rule to the pleadings before us, the allegations of defendant’s answer to the effect that the acts admitted constitute the practice of osteopathy are mere conclusions of law. The allegation of a sound conclusion of law is always treated as superfluous and the allegation of an unsound conclusion is entirely disregarded. It matters not in the instant case whether the conclusions pleaded are true or not, for that which is judicially known may not be successfully controverted by pleadings, or made issuable by them. National Supply Co. v. Chicago & N. W. R. Co., 108 Neb. 326, 187 N. W. 917; State v. Rolio, 71 Utah, 91, 262 Pac. 987.
This court is therefore required to determine the meaning of the term “osteopathy” in the same manner as any other fact of which it is required to take judicial notice. It may resort to the definition and description of it given by the founder of the practice, by those who teach and practice it, and by the lexicographers who define it as a science. State v. Bonham, 93 Wash. 489, 161 Pac. 377.
Much has been written by the founder of osteopathy, and others learned in the practice of its profession, as to the fundamentals of the science of osteopathy. To give a resume of these writings would unduly lengthen this opinion. We think a fair conclusion to be drawn from all of them was ably expressed in Bragg v. State, 134 Ala. 165, 32 So. 767, where the supreme court of Alabama said: “The method of treatment by the practitioners of osteopathy is a system of manipulation of the limbs and body of the patient with the hands, by kneading, rubbing or pressing upon the parts of the body. In the treatment, no drug, medicine or other substance is administered or applied, either internally or externally; nor is the knife used or any form of surgery
The well-settled definitions of osteopathy, in the writings of Dr. Andrew Taylor Still, its founder, and in the writings of recognized practitioners, as well as in the dictionaries and the decisions of the courts, all uniformly hold that the system of osteopathy administers no drugs and uses no knife. See Nelson v. State Board of Health, 108 Ky. 769, 57 S. W. 501; State Board of Medical Examiners v. Baudendistel, 6 N. J. Misc. 249, 140 Atl. 886; Harlan v. Alderson, 55 Cal. App. 263, 203 Pac. 1014. With these definitions and observations in mind, the licensing statutes must be examined to determine the extent to which this definition has been modified in this state by legislative action. Section 71-1701, Comp. St. 1929, provides: “For the purpose of this article the following classes of persons shall be deemed
Provisions are then made for the examination and licensing of those who would practice osteopathy. Among the requirements is the presentation of proof that the applicant was graduated from an accredited school or college of osteopathy. Comp. St. 1929, sec. 71-1703. The following section defines an accredited school of osteopathy. Among the conditions required is that the course of study must include the following subjects: Anatomy; chemistry; pathology; toxicology; pediatrics; general surgery; obstetrics; histology; physiology; hygiene; dietetics; practice, therapeutics, general diagnosis and technique; dermatology and syphilis; orthopedic surgery; gynecology; embryology; bacteriology; comparative therapeutics; nervous and mental diseases; jurisprudence, ethics and economics; genitourinary diseases; and eye, ear, nose and throat. Comp. St. 1929, sec. 71-1704. The section following this provides: “Every license issued under this division shall confer upon the holder thereof the right to practice osteopathy in all its branches, as taught in the osteopathic colleges recognized by the American Osteopathic Association.” Comp. St. 1929, sec. 71-1705.
The argument is made that as general surgery, orthopedic surgery, anatomy, pathology and other subjects are included in the required course of study in an accredited school of osteopathy, their practice is included in the statutory authorization by virtue of the use of the words “The right to practice osteopathy in all its branches, as taught in the osteopathic colleges recognized by the American Osteopathic Association.” The words of this statute
This point is well summed up in Georgia Ass’n of Osteopathic Physicians and Surgeons v. Allen, 31 Fed. Supp. 206, wherein the court said: “His knowledge must be broader than his practice; he must know what he practices but may not practice all he knows.”
Respondent argues that, as the act of 1919 (Comp. St. 1922, sec. 8174) contained the provision that “osteopathic physicians shall perform only such operations in surgery as was fully taught in the school or college of which the applicant is a graduate at the time of his attendance,” it thereby recognizes operative surgery as a branch of osteopathy. This contention is too broad. Much of the difficulty in this class of cases has arisen because of the varied
We conclude therefore that an osteopathic physician and surgeon is not authorized under the statutes of Nebraska to engage in the practice of operative surgery and that the trial court was in error in holding to the contrary.
Relator contends that respondent cannot engage in the practice of obstetrics without a license to practice medicine and surgery as defined by section 71-1401, Comp. St. 1929. That a practicing physician and surgeon, properly licensed under the statute, may engage in the practice of obstetrics is not disputed. The right to practice obstetrics is not specifically granted by the statute authorizing the licensing of osteopathic physicians and surgeons. It is not disputed that respondent graduated from an accredited school of osteopathy, the requirements of which include the study of obstetrics. In the respects noted, respondent is in no better position than he was as to his right to practice operative surgery. But we are again required to examine the statutes to determine to what extent, if any, they have modified this position. Under the provisions of the 1901 act, an osteopath was required to report to the proper authorities all cases of contagious diseases, deaths
It will be noted that the present law does not specifically require an osteopath to file birth certificates with the department of public welfare, the requirement being that the birth certificate shall be filled out by the physician in attendance.
To obtain a license to practice osteopathy, respondent was required to exhibit a diploma issued by a regular school of osteopathy wherein the curriculum included instruction in certain subjects required by statute, one of which was obstetrics. He was also required to pass an examination in the required subjects. While these facts alone would not authorize respondent to engage in the practice of obstetrics, yet, when considered with the statute regarding the reporting of childbirths, together with the history of its development, we think the legislature authorized respondent, upon securing a license to practice osteopathy, to engage in the practice of obstetrics. As was said in Stoike v. Weseman, 167 Minn. 266, 208 N. W. 993: “Unless an osteopathic physician could lawfully attend a woman in childbirth, there would be no reason for requiring him to report the birth of the child.” Of course, the present statute does not specifically require an osteopath to report
The attorney general contends that defendant is not authorized to use anesthetics in his practice as an osteopath. The 1919 act of the legislature (Comp. St. 1922, sec. 8174) provided in part as follows: “Nothing in this act shall be construed so as to authorize the administration, by an osteopath, of drugs excepting anesthetics, antiseptics, antidotes for poisons and narcotics for temporary relief of suffering.” This clearly shows that the legislature intended the use of anesthetics to be included in and authorized by the license to practice osteopathy. In 1927 a new statute was enacted which read as follows: “Every license issued under this division shall confer upon the holder thereof the right to practice osteopathy in all its branches, as taught in the osteopathic colleges recognized by the American Osteopathic Association.” Comp. St. 1929, sec. 71-1705. We do not think the passage of the 1927 act manifests any legislative intent to deprive the defendant
The trial court erred in not granting an injunction enjoining the defendant Gable from engaging in the practice of operative surgery and from publicly holding himself out as licensed and otherwise qualified to perform operative surgery with surgical instruments. In all other respects the judgment of the trial court is correct.
Affirmed in part and reversed in part.