Webster v. Lamb

15 S.D. 292 | S.D. | 1902

Fuller, J.

This is an appeal from an order overruling a general demurrer to the following complaint: “That at all of the times hereinafter mentioned the plaintiff was a duly qualified, licensed, and practicing physician and surgeon. That between the 22nd day of January, 1895, and the 5th day of August, 1897, the plaintiff rendered medical services and other professional services, in his capacity of physician and surgeon, for the defendant’s family, at the defendant’s special instance and request. That said services were reasonably worth one hundred and sixty-three dollars ($163). That said sum of one hundred and sixty-three dollars has never been paid, nor any part thereof, except sixty-three dollars ($63). That there is now due and owing from the defendant, and to the plaintiff, one‘hundred dollars ($100), with interest thereon from and after the 5th day of August, 1897, at 7 per cent, per annum. Wherefore, the plaintiff demands judgment against the defendant and in favor of the plaintiff for the sum of one hundred dollars ($100) and interest thereon at the rate of 7 per cent per annum from and after the 5th day of August, 1897, on a physician’s bill, more than six months past due, besides the costs and disbursements of the plaintiff in this action.”

Exempting from its operation all persons lawfully practicing medicine in this state on the 16th day of February, 1893, Chapter 133 Laws 1893, makes it a public offense punishable by both fine and imprisonment for any one to so practice thereafter without first obtaining a license from the board of health and recording the same in the office of the register of deeds in the county of his residence. Whether it was necessary to alledge in express terms that respondent had obtained a license from the board of health, and had duly recorded the same, is the point decisive of this appeal. A case involving the same principle is that of Mercantile Agency v. Rochford, 10 S. D. 203, 72 N. W. 466, 66 Am. St. Rep. 714, and it was there held that failure to comply with statutes of this character must be taken advantage of by answer where non-compliance does not affirmatively appear on the face of the complaint. The general presumption that every man is innocent of crime renders it unnecessary in a civil action to plead or prove compliance with statutes of this character, and a defendant desiring to.put the.point in issue must do so by way of answer. In a suit by a physician on account for services, it is uniformly presumed that;, he has complied with all statutes essential to his authority to practice medicine, and it heed not be pleaded, nor in the first instance proved, that he has obtained and recorded a license. Lacy v. Kossuth Co., (Iowa) 75 N. W. 689; Thompson v. Sayre, 1 Denio, 175; Lyford v. Martin (Minn.) 82 N. W. 479.

In the absence of anything on the face of the complaint to show that respondent has not complied with the statute, the objection must be taken by answer, and the order of the circuit court overruling appellant’s demurrer is affirmed.