Musser's v. Chase , 29 Ohio St. 577 ( 1876 )

McIlvaine, J.

A number of objections are made to the judgment below, the more important of which may be stated thus:

1. That the contract sued on is illegal and void, under the act of May 5, 1868. 65 Ohio L. 146.

2. That the court of common pleas erred in refusing to charge as requested by the defendant.

3. That it also erred in overruling the defendant’s motion for a new trial.

1. Under the act of May 5, 1868, it is made a penal offense for any person to practice medicine in any of its departments “ who has not attended two full conrses of instruction and graduated at some school of medicine,” unless such person “ has been continuously engaged in the practice of medicine for a period of ten years or more.”

Conceding that the practice of Musser, as shown in this case, was in violation of this statute, it does not follow that the plaintiff, if injured by his malpractice, is without remedy by a civil action. We fully recognize the principle-that no right of action arises on a transaction prohibited by law ; but in our judgment the principle does not apply in this case. The object of this statute was not to make the practice of medicine unlawful, but simply to protect the community from the evils of empiricism. Whether the principle would apply if it were shown that the plaintiff, at the time of employment, had knowledge that the defendant was excluded from the right to practice his specialty (to wit, the treatment of cancers) by this act, we need not inquire, as it is nowhere in this record shown that sha had such knowledge. It is enough now to say that the duty and risk of ascertaining the qualifications of the defendant to practice was not devolved by this statute on the plaintiff', and therefore, in no sense, can she be regarded as a particeps criminis. The proposition on this point contained in the defendant’s first request to charge the jury is a mere abstraction. Such knowledge was not alleged against her, nor was it made the subject-matter of proof. To hold in such case that public policy forbids a civil remedy for the injury sustained, would be to extend the operation of the statute beyond the purpose for which it was made, and to inflict a punishment where none is prescribed.

The principle and reason of this decision are declared in Union M. Life. Insurance Company v. McMillen, 24 Ohio St. 671, which was an action on a policy of life insurance issued by an agent of the company, in violation of the express provisions of a penal statute. The action was sustained.

2. The following requests to charge were refused by the court: “ 1. If the jury find the deceased was not a licensed physician, and said plaintiff knew that fact, and that said deceased only used, at her request, a remedy he had obtained from another, who claimed to be a physician, that then said agreement set up in said petition is illegal and void, and the plaintiff can not recover in the action. 2. That before the plaintiff can recover in the action she must show by her evidence .to the satisfaction of the jury that said employment must have been entered into at the request of the defendant, as is averred in the petition; and if the evidence shows that said deceased was employed and retained by said plaintiff at her request, then the verdict must be for defendant. 3. That before the plaintiff can recover in this action, the plaintiff must prove to the satisfaction of the jury that the defendant did hold himself out as a physician in practice, under this petition. 4. That if said defendant simply claimed to be using a recipe or prescription obtained from another, and^ said plaintiff knew that fact when she employed him to use on her said prescription, and not as a physician, then she can not recover. 5. That the plaintiff can not recover if, when she employed «aid deceased, he was not a physician authorized to practice under the laws of Ohio. 6. That if said plaintiff' employed said Jacob Musser to heal the said tumor, knowing that he did not possess the skill required to treat such ■case, she must take the risk of the injury that resulted from the unskillful treatment of the disease, and can not recover unless the injury was caused by the fraud or gross negligence of said Jacob Musser.”

For error in refusing to charge as thus requested, the judgments below can not be disturbed, The bill of exceptions upon which this error is assigned was not allowed at the trial term. Code, sec. 290 et seq.; Morgan v. Boyd, 13 Ohio St. 271.

The second proposition contained in the above series of requests is clearly not the law. The averment that the retainer of the defendant was at his special instance and request is technical, and is sufficiently proved by showing that the defendant held himself out as a practitioner soliciting public patronage, and that the employment was by mutual consent. The contract of employment being entered into, it matters not, under this averment, that it was induced at the special instance and request of the plaintiff.

3. The motion for a new trial in the court of common pleas was on the ground of supposed misdirection to the jury, and that the verdict was contrary to the law and evidence. This motion- was overruled at the term next after the trial term, to which the hearing of the motion had been continued; and thereupon the defendant took his bill of exceptions, in which was embodied all the testimony, the charges refused, a part of the charge as given, together with other exceptions taken during the trial. In considering whether there was error in overruling this motion, the entire record is before us for review, including the matters given in charge and those refused as set forth in the bill of exceptions. Sec. 4 of the act of April 12, 1858 (S. & C. 1155 ; 78 Ohio L. 140); Coleman v. Edwards, 5 Ohio St. 51; Marietta & Cin. R. R. Co. v. Strader & Co., decided at present term, see ante, 448.

By looking into the record we find that all the law stated i n the requests to charge, and material to the issue, was given to the jury, in substance, as follows : “ But if you find from the evidence that the plaintiff, at the time of the -employment mentioned in the petition, knew that the defendant was not a physician, that she knew he was not skilled in the removal of tumoi’s and cancers, and that he did not know the nature, appearance, and character of such •diseases, and that she did not rely upon his skill and ability as a physician, or as a person skilled in the removal and ■cure of tumors and cancers, but upon a recipe or prescription which the defendant claimed would remove and cure tumors and cancers, then, if the injury complained of in the petition was caused or produced by such recipe or prescription, and not by the negligence or carelessness of the defendant, then the plaintiff can not recover.” This charge, upon the propositions contained in the requests, was as favorable to the defendant as he had a right to ask.

The testimony shows that the original defendant was a farmer by general occupation, but also held himself out as •a cancer doctor, having skill and experience in the treatment and cure of cancers, aud claiming also to be in possession of a certain recipe or prescription, procured from one Dr. Garrett, a cancer specialist, that would remove ■cancers without affecting sound tissue. Such was the character in which he wras employed by the plaintiff below.

Now, it is claimed by plaintiff in error that such proof did not sustain the averment in the petition that he was employed as a physician. We think the gravamen of this averment is, that he was employed” as one professing to have skill and experience in the treatment and cure of the malady with which the plaintiff was supposed to be afflicted, .and that the proof not only sustains the averment when properly construed, but brings the party employed within the rule of law which requires the exercise of such skill and care as are usually possessed and employed by the general physician in the treatment of such maladies.

It is also claimed that the court of common pleas erred In rejecting certain testimony.

On the trial, Dr. Garrett, from whom Musser had received the recipe for the compound used in the treatment of plaintiff’s malady, was a witness for the defendant, to whom the following questions were put:

1. State what you know about the knowledge and skill of Musser in regard to the treatment of cancerous diseases ?

2. What instructions did you give him how to use the medicine ?

3. Did you give him instructions how to use the medicine ?

While the objection to these questions is not apparent, it is enough to say, in addition to the fact that the real controversy was as to the skill employed by Musser in the treatment of the case, and not as to the skill which he possessed, that the record does not disclose the nature of the testimony expected from the witness in response to these questions. Gondolfo v. State, 11 Ohio St. 114.

We will notice one more objection urged by plaintiff in error against these judgments. It is claimed that the order of revivor against the plaintiff in error was erroneous, for the reason that section 96 of the act relating to executors and administrators (S. & C. 584) was not complied with. This section provides that an executor or administrator shall not be liable to the suit of a creditor, in certain cases, unless the claim has been exhibited to the executor or administrator and has been disputed or rejected by him.

This provision does not apply to a proceeding to revive an action pending at the death of the party, or to such action after revivor. Farrier v. Cairnes, 5 Ohio, 45, is not in point. But, if it were otherwise, it would be too late to raise the objection for the first time after the appearance of the executor and trial had upon the merits of the claim.

We find no error in the record .for which the judgments below should be reversed.'

Motion overruled.