133 S.W. 901 | Tex. App. | 1910
Dr. Howard A. Kelly, plaintiff, recovered a judgment against W. B. Swift, defendant, for five hundred dollars, and the defendant has appealed. In his petition plaintiff alleged that at defendant's special instance and request he had performed for defendant certain professional services as a physician and surgeon and furnished him nurses and supplies during defendant's illness, an account of which was attached to the petition as a part thereof, and that defendant "then and there promised plaintiff to pay him on demand so much money as the services and supplies hereinbefore mentioned were reasonably worth; that the said services and supplies were at the time of the sale and delivery thereof reasonably worth the several sums of money charged therefor in said account specified, amounting, after the allowance of all credits due thereon, to the sum of nine hundred sixty-nine and ninety-four hundredths dollars ($969.94)."
Plaintiff further alleged in his petition that he resided in Baltimore, Maryland, that defendant resided in Tarrant County, Texas, and that plaintiff "is a physician and surgeon, practicing his profession in the State of Maryland and is a professor in Johns Hopkins University."
Appellant insists that the court erred in overruling his general demurrer to the petition for that it failed to show that plaintiff was authorized by law to practice as a physician and surgeon and to maintain a suit to collect for such professional services. We sustain that contention. By title 82, Sayles' Texas Civil Statutes, as amended by the Legislature in 1901, Boards of Medical Examiners were established, a license from which was required as a condition precedent to the right to practice medicine and surgery in this State and article 3788 of that title reads:
"Any person who shall practice medicine, surgery or midwifery in this State in violation of the provisions of this Act shall be fined not less than fifty dollars nor more than five hundred dollars for each offense, or by both fine and imprisonment not exceeding six months, and it shall not be lawful for him or her to recover by action, suit, motion, or warrant, any compensation for services which may be claimed to have been rendered by him or her as such physician, surgeon or midwife; provided, that the provisions of this Act do not apply to persons treating disease who do not prescribe or give drugs or medicine."
It is well settled that a physician practicing in this State without the license required by our statutes can not recover for his services. *272
Peterson v. Seagraves,
It is also well established that, in the absence of proof to the contrary, it will be presumed that the laws of other States are the same as the laws of this State upon the same subject. Gill. v. Everman,
While the account attached to the petition includes certain items other than professional services rendered by plaintiff, the aggregate of the amounts charged therefor was not within the jurisdiction of the court, and if the items for the personal services of plaintiff had been excluded, it would have been necessary for the court to dismiss the petition of his own motion for want of jurisdiction and hence the general demurrer was sufficient to raise the question now under discussion.
The items charged in the account were indefinitely stated and defendant's special exception thereto for uncertainty should have been sustained.
The amount sued for was within the jurisdiction of the court, and defendant's special exception to the petition presenting the contention that as the entire account before the entry of credits thereon was for one thousand, eight hundred and thirty-five dollars and six cents, the court was without jurisdiction, was properly overruled. Gimbel v. Gompbecht,
Over defendant's objection plaintiff was permitted to introduce in evidence defendant's promissory note in plaintiff's favor for five hundred dollars of the amount sued for, and also letters and telegrams from defendant to plaintiff requesting an extension of time for its payment. The ground of defendant's objection was that as the suit was to recover on a promise to pay the reasonable value of the services, evidence showing a contract to pay a specific sum was irrelevant and incompetent. Among other defenses defendant alleged unskillful and negligent treatment of him by plaintiff, and offered evidence in support thereof. As against this defense we think the evidence to which objection was made was admissible, as the same would be in the nature of an admission at variance with that plea. But the testimony was not admissible to prove the value of the services rendered by plaintiff. Shiner v. Abbey,
We are of opinion further that the court erred in permitting plaintiff to show the reasonable value of his services by proof that defendant was wealthy, coupled with further proof of a custom among physicians to graduate their charges according to the financial condition of the patient, and to charge a wealthy person a higher fee by reason of his superior ability to pay. As noted above, the suit was to recover the reasonable value of professional services rendered by plaintiff. In 30 Cyc., 1600, it is stated that there is a conflict in the authorities on this question, and the announcement seems borne out by the decisions there cited. In Robinson v. Campbell,
For the reasons noted the judgment is reversed and the cause remanded.
Reversed and remanded.