Roesler v. Shastri ( 1918 )

Vinje, J.

We think the court erred in directing a verdict in this case. It was a question for the jury to say whether or not plaintiff was deceived by defendant. The jury had a right to believe plaintiff’s testimony and to draw the conclusion therefrom that he was defrauded of his money. He had an insane wife; that he was anxious to cure her is evidenced by the fact that he willingly paid $50 a day in an effort to do so. He was undoubtedly ignorant of what could or could not be done through mental healing or hypnotic suggestion. There is a sharp conflict of views on 1;hat subject by those who' have given it study and attention. That he did not know is not strange. Neither is. it strange that he was unable to diagnose the exact or even relative condition of his wife’s mind at the time the draft was delivered. He had been told that her mind must first be wholly destroyed and then built up, and he evidently believed that. The law protects the ignorant and credulous as well as the wise and wary. Miranovitz v. Gee, 163 Wis. 246, 157 N. W. 790. He was told by defendant when he received the draft that her mind was fifty per cent, cured and that the nurse could take care of her afterward. We employ doctors to diagnose disease and to cure it or direct us what to do to effect a cure. That is their profession. When they give advice the patient is justified in following it unless it is so palpably contrary to sense or human experience as to be disbelieved by every one.

There is sufficient evidence in this case to warrant the jury in finding that the defendant held himself out as a doctor. A letter from him to the nurse which was shown to- plaintiff has the heading K. D. Shastri, M.D., and is signed K. D. Shastri, M.D. He was called doctor and made no- protest. The fact that he was not required to be licensed to heal by mental science or hypnotic suggestion is immaterial on the question of actual fraud. An unlicensed person may make fraudulent representations.

Plaintiff should have been permitted to show by other doctors, if he could, that the treatment given his wife by the defendant was injurious and not beneficial. It is true the defendant’s counsel on the trial admitted that she was neither cured nor benefited. But plaintiff’s offer went further. He offered to prove that she had been injured by the treatment. Such proof was pertinent on the issue of fraud and should have been admitted.

Claim is made that, since in delivering the draft to the defendant plaintiff parted with the legal title thereto, he cannot maintain replevin to recover it. This court has several times negatived that claim and held that replevin will lie to recover goods obtained by fraud. Singer v. Schilling, 74 Wis. 369, 43 N. W. 101; Lee v. Burnham, 82 Wis. 209, 52 N. W. 255; Mayhew v. Mather, 82 Wis. 355, 52 N. W. 436.

By the Court. — Judgment reversed, and cause remanded for a new trial.