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A similar classification was upheld in Citizens' Insurance Co. v. Clay et al., supra, where the Kentucky state insurance rate law excepted from its operation purely mutual or profit-sharing companies, or co-operative companies not operating for profit, and church insurance companies. The objection that the section mentioned is class legislation cannot be sustained.

(49 Okl. 643) INSURANCE CO. OF NORTH AMERICA et al. v. WELCH, State Insurance Com'r. (No. 7582.)

(Supreme Court of Oklahoma. Nov. 9, 1915. Rehearing Denied Jan. 4, 1916.)

(Syllabus by the Court.) MANDAMUS 87-INSURANCE AGENTS-DUTY TO ISSUE LICENSES-MANDAMUS. Under the provisions of chapter 174, Sess. Laws 1915, p. 340, the duty of issuing licenses to insurance agents is imposed upon the state insurance board, and mandamus will not be awarded against the insurance commissioner di

Subdivision C of section 10, which provides a penalty for any insurance company, foreign or domestic, requiring any person as a condition precedent to his appointment as agent or retaining an agency for said com-recting him to issue such license. pany to refuse or surrender the agency of any domestic insurance company, is assailed as being in contravention of section 2, art. 2, of the Constitution, which provides:

"All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry."

And a portion of section 12 is also assailed as being an infringement of the rights of an insurance agent, granted to him by said section of the Constitution. Upon this question it is sufficient to say that plaintiff is not in position to raise these objections to the sections challenged, and therefore we will not consider same for this reason. Rea v. State, 29 Okl. 708, 110 Pac. 235; Robertson et al. v. Board of Commissioners, 14 Okl. 407, 79 Pac. 97; Stine v. Lewis, Sheriff, et al., 33 Okl. 616, 127 Pac. 396.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. §8 189-194; Dec. Dig.

87.]

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Mandamus by the Insurance Company of North America, a corporation, and others against A. L. Welch, Insurance Commissioner of the State of Oklahoma. Judgment for defendant, and plaintiffs bring error. Affirmed.

Burwell, Crockett & Johnson, of Oklahoma City, for plaintiffs in error. S. P. Freeling, Atty. Gen., and J. H. Miley and Smith C. Matson, Asst. Attys. Gen., for defendant in error.

HARDY, J. This is an action by the plaintiff Insurance Company of North America [9] Complaint is also made of the action and certain of its agents for the purpose of of the insurance board in refusing to ap- compelling A. L. Welch, insurance commisprove the form of policy submitted by plain- sioner of the state of Oklahoma, to issue to tiff because same appears to be a joint pol- such agents licenses authorizing them to repicy issued by it and another company, and resent the plaintiff company and issue polihas indorsed on the filing back thereof in cies on its behalf. The petition alleged that large letters the words "PHILADELPHIA the plaintiff had been licensed to do busiUNDERWRITERS' DEPARTMENT," and ness in the state of Oklahoma for the year immediately following and in connection 1915, and had in all matters and things comtherewith, but in small letters, the words plied with the laws of the state and with "Of Both Companies." It does not appear the insurance department thereof, and that from the pleadings or evidence that plaintiff certain persons named in its petition and in has used or will use such form of policy an exhibit attached thereto had been appointwithout the approval of the board, and there ed by it as its agents in this state for the fore there is no cause for interference until year 1915, which list of agents had been a case shall be presented where actual re-filed with the insurance department of the lief may be granted. Plaintiff is not entitled state and with the defendant as insurance to the relief demanded, for the additional commissioner; that the necessary fees had reason that, the act conferring authority up-been tendered, setting forth compliance with on the insurance board to act in the prem- all of the provisions of the law in reference ises being valid, and provision being made to the appointment and licensing of agents therein for an appeal to this court, the plain- on behalf of plaintiff and its agents; that it tiff is not entitled to resort to a court of had requested the defendant, as insurance equity for injunctive relief, but must pursue commissioner, to issue said licenses, which the remedy provided by the statute, which he had refused to do. in this case appears to us to be plain, speedy, and adequate. Ellis v. Akers et al., 32 Okl. 96, 121 Pac. 258; Harris et al. v. Smiley, 36 Okl. 89, 128 Pac. 276.

For the foregoing reasons, the order of the trial court denying the temporary injunction is affirmed. All the Justices con

cur.

Upon filing the petition an alternative writ of mandamus was issued and served upon the defendant, who within due time filed his answer and return, justifying himself under the provisions of House Bill No. 70, contending that, under said law, the authority and power to issue licenses to agents of insurance companies was vested in the state insurance

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

board, and that defendant had no authority | physician acts in an administrative, and not a under said law to do so. judicial, capacity, and the same strictness in

At the trial it was admitted that defend- pleadings and practice is not required before it as before a judicial tribunal. It is sufficient ant, Welch, had refused to issue the licenses if the accused is informed by the complaint of to the agents named, and at the close of the the wrong charged against him and the particutrial judgment was rendered for the defend- lar instances of its perpetration charged, and ant. Motion for new trial filed and overruled, such charges, and the proceedings are free from has an opportunity to defend against proof of and exceptions saved, and plaintiffs bring er- prejudice, fraud, or oppression. The determination of this case is controlled by the decision in Insurance Co. of North America et al. v. Welch, Insurance Commissioner, et al. (No. 7581) 154 Pac. 48, this day decided.

ror.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. 15; Dec. Dig. 11.]

11-PRO

5. PHYSICIANS AND SURGEONS
CEEDINGS TO REVOKE LICENSE-EVIDENCE-
ADVERTISEMENT.

By the provisions of chapter 174, Sess. An advertisement published by a physician Laws 1915, p. 340, the power and duty to li- held properly admitted in evidence against him cense insurance agents is conferred upon the upon a charge of obtaining a fee on the assurstate insurance board; and, having deter-manently cured by him, as tending to prove ance that an incurable disease can be permined this act to be a valid exercise of legis- the assurance of permanent cure, where such lative authority, it follows that the defendant assurance is denied by the physician. as insurance commissioner is without author

ity to issue the licenses demanded by plaintiffs, and no duty is imposed upon him to do so, as said licenses should be issued by the

state insurance board.

The judgment of the trial court refusing the writ of mandamus is therefore affirmed.

(54 Okl. 531)

FREEMAN v. STATE BOARD OF MED

ICAL EXAMINERS. (No. 5854.) (Supreme Court of Oklahoma. Dec. 7, 1915. Rehearing Denied Jan. 11, 1916.)

(Syllabus by the Court.)

[Ed. Note.-For other cases, see Physicians

and Surgeons, Cent. Dig. § 15; Dec. Dig.

11.]

6. APPEAL AND ERROR 1071 - HARMLESS ERROR-FINDINGS OF FACT-EVIDENCE.

It is error for the court to make a finding of fact upon a matter upon which all evidence was excluded, but, where the other findings of the court are supported by the evidence, and are sufficient to sustain the judgment of the court, such error is not so prejudicial as to warrant a reversal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. —~— 1071.]

7. PHYSICIANS AND SURGEONS 11-REVO-
CATION OF LICENSE-SUFFICIENCY OF EVI-
DENCE-CERTIORARI.

1. PHYSICIANS AND SURGEONS 11-REVO-
CATION OF LICENSE-PROCEEDINGS-PAR- the judgment of the court.

Evidence considered, and held to sustain

TIES.

The state is not a necessary party to a proceeding before the state board of medical examiners to revoke the license of a physician. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11.]

2. PHYSICIANS AND SURGEONS 10-"UNPROFESSIONAL CONDUCT"-"INCURABLE DISEASE."

and Surgeons, Cent. Dig. § 15; Dec. Dig.
[Ed. Note.-For other cases, see Physicians
11.]

Commissioners' Opinion, Division No. 1.
Error from District Court, Bryan County;
Jesse M. Hatchett, Judge.

Certiorari by R. W. Freeman against the State Board of Medical Examiners. Writ quashed, and plaintiff brings error. Affirmed.

Hatchett & Ferguson, of Durant, for plaintiff in error. S. P. Freeling, Atty. Gen., and

In the second clause of section 6905, Rev. Laws 1910, defining "unprofessional conduct" of a physician as ** * the obtaining of any fee on the assurance that an incurable disease can be permanently cured," the words "incurable disease" mean any disease which has C. W. King, Asst. Atty. Gen., for defendant reached an incurable stage in the patient af- in error. flicted therewith, according to the then general state of knowledge of the medical profession.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 14; Dec. Dig. 10.

For other definitions, see Words and Phrases, First and Second Series, Unprofessional.] 3. PHYSICIANS AND SURGEONS 10-UNPROFESSIONAL CONDUCT-VALIDITY OF STATUTE.

The second clause of section 6905, Rev. Laws 1910, is valid, and defines an offense against professional conduct on the part of physicians.

[Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. § 14; Dec. Dig. 10.]

4. PHYSICIANS AND SURGEONS 11- PROCEEDINGS TO REVOKE LICENSE-COMPLAINT. The state board of medical examiners in a proceeding before it to revoke the license of a

RUMMONS, C. The questions involved in this appeal raised in the brief of plaintiff in error necessary to be considered consist of four propositions: First. Is the state a necessary party to this proceeding? Second. Is the clause in section 6905, Revised Laws 1910, defining "unprofessional" conduct of a physician as follows: "Second. The obtaining of any fee on the assurance that an incurable disease can be permanently cured”— void and of no effect? Third. Whether or not the proceedings before the state board of medical examiners and the district court were regular and free from prejudicial error? Fourth. Was the evidence sufficient to support the judgment of the trial court?

Section 6913, Revised Laws 1910, further provides:

"Any person who has been aggrieved by any act, rule or regulation of said board shall have the district court of the county in which some his right of action to have such issue tried in member of the board shall reside."

The plaintiff in error, a duly licensed phy-, 20 days after the filing of the complaint, and sician, was informed against before the state to proceed thereafter to try and determine board of medical examiners upon a charge the issues raised. of being guilty of unprofessional conduct. He was thereafter duly cited to answer the complaint, and did answer the same, denying specifically the acts complained of. Thereafter, at one of its regular quarterly meetings, the state board heard the complaint, and, after plaintiff in error had unsuccessfully moved to dismiss the complaint, the statute does the state of Oklahoma or It will be seen that under no provision of demurred thereto, and moved to strike, proceeded to take testimony upon the complaint. to institute proceedings for the revocation of any official thereof have exclusive authority The state board found against plaintiff in the license of a physician, nor is there any error, and ordered that his license as a physi-authority in the statute by which the state of

cian be revoked. Thereupon plaintiff in error filed his petition in the district court of Bryan county praying a writ of certiorari to issue to the state board of medical examiners to review their action upon the complaint

aforesaid. The writ was issued, and there

after the cause came on before the district court of Bryan county, and a trial was had to the court, without the intervention of a jury, upon the complaint filed with the state board of medical examiners and the answer of plaintiff in error thereto. The trial court found against plaintiff in error, and quashed the writ of certiorari and affirmed the action

of the state board of medical examiners.

Oklahoma can control such proceedings. The the state of Oklahoma or the Attorney Genproceeding may be instituted by any one, and eral would be wholly without authority to dismiss such proceeding or cause it to be ion that, while the state of Oklahoma, discontinued. Therefore we are of the opinthrough its Attorney General, might appropriately institute such a proceeding, yet it is not such a necessary party to the proceedings as to require it to be in court before the matter could be proceeded with.

66

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*

* *

vised Laws 1910, above quoted void and of [2, 3] Is the provision of section 6905, Re[1] Plaintiff in error insists that this pro- plaintiff in error cite the case of Graeb v. no effect? Upon this proposition counsel for ceeding should have been dismissed for the State Board of Medical Examiners, 55 Colo. reason that the state of Oklahoma is a nec- 523, 139 Pac. 1099, 47 L. R. A. (N. S.) 1063. essary party to a proceeding like this. We cannot agree with this contention of plainThe Colorado statute provides as a ground tiff in error. The case of Gulley v. Terrifor revoking the license of a physician tory of Oklahoma, 19 Okl. 187, 91 Pac. 1037, The obtaining of a fee on the repdoes not sustain the contention of the plainresentation that a manifestly incurable disSection tiff in error, because that case was begun and ease can be permanently cured." tried under the laws then in force in the terri- 6068, Rev. St. 1908. Our own statute makes tory of Oklahoma providing that the district the ground for the revocation of license court shall upon the complaint of any member the obtaining of any fee on the of the territorial board of health have power assurance that an incurable disease can be to cancel the license of any physician found permanently cured." The two statutes are guilty, etc. Under this statute the proceed-identical, except for the word "manifestly" ings to revoke the license of a physician were judicial, had to be commenced upon the complaint of a member of the territorial board of health, and were thus officially controlled, and the court rightfully held the state to be a proper party in such a proceeding. The case of State v. Estes, 34 Or. 196, 51 Pac. 77, 52 Pac. 571, 55 Pac. 25, cited by plaintiff in error, also fails to sustain the contention of plaintiff in error. In that case it was held that the state was a proper party in a proceeding to revoke the license of a physician, and that, notice of appeal having been served upon the state, it need not be served upon the State Board.

of the Colorado Supreme Court in the case used in the Colorado statute. A majority cited held that the statute quoted was too

indefinite and uncertain to be valid. The court, in passing upon this question, uses the following language:

ed in this respect in their brief in Hamilton v. "The position of the board is very clearly statBoard (Colo.) 148 Pac. 1145, to which brief we are referred and asked to consider in connection with this case. This is as follows: 'If the whether the words "manifestly incurable disquestion were in controversy in this case as to ease" is so indefinite as to be unenforceable, we would welcome the issue, but we hesitate to burden this court with a vast number of authorities on a point not in issue. Suffice it to say that the words last quoted do not refer to any Our statutes (sections 6901, 6903 and 6904, diseases per se, but to a condition of the patient Revised Laws 1910) provide the procedure suffering from almost any disease. It is true for revoking the license of a physician. The disease" in itself, but an invalid suffering from that consumption is not "a manifestly incurable. proceeding to revoke the license may be com- consumption may have reached a stage in which menced by any one upon a sworn complaint; the disease is "manifestly incurable." Under and thereupon it is the duty of the state our statute, a physician might lawfully take board of medical examiners to issue citation case of consumption and at the same time be money for representing that he could cure one to the party complained of to answer within committing an offense for taking money under a

charged with having undertaken to treat upon assurance of effecting a permanent cure were not considered by the witnesses for the complainant to be incurable per se; in fession recognizes any disease as incurable per se-that is, beyond the reach of medical skill at any stage in the progress of the disease. We think, however, that the majority opinion of the Colorado court does not rightly construe the statute, and we prefer to follow the dissenting opinion in that case, as we think the dissenting opinion correctly interprets the statute in question, and that such interpretation is equally applicable to our own statute.

similar representation as to another case of the same disease which had manifestly gone beyond the curable stage.' This argument is also advanced in this case, but not so clearly stated as in the above quotation. This position is not tenable. If the statute had intended a manifest-fact, it may be doubted if the medical proly incurable person, or a manifestly incurable diseased condition, it would doubtless have so recited. But the language is a 'manifestly incurable disease.' Clearly the descriptive words 'manifestly' and 'incurable' apply to the disease, and not to the person or the condition of the person afflicted with the disease. This is likewise the charge in the complaint; for it alleges 'that a manifestly incurable disease could be cured * the disease known as consumption.' Counsel for the board have cited no authority justifying such construction of the language used in the statute as that for which they contend, and we do not see how language so clear and explicit can be so tortured. If there is no disease known and understood to be manifestly incurable, then the statute states no offense in that particular, and the board was without jurisdiction in the premises."

Mr. Justice Gabbert, writing the dissenting opinion for the minority of the court, uses the following language:

"When is a disease manifestly incurable? Clearly when it is evident it has reached the stage that it cannot be made to yield to medical treatment. That is what laymen, as well as the medical profession, understand from the expression 'a manifestly incurable disease.' The intent of the law is to be considered in its interpretation, and, in ascertaining such intent, the evil against which it is directed must be con sidered. It is common knowledge that one suffering from disease can easily and readily be imposed upon by those who, by reason of the fact that they have obtained a license to practice medicine, are presumed to possess that degree of skill in the treatment of disease which will enable them to accomplish that which they represent they can. The object of the statute is to prevent what would be nothing less than extortion by members of the medical profession, obtaining money from persons or the relatives and friends of those suffering from disease by promising a cure when it is apparent that the patient is beyond the reach of medical science. Such being the object of the statute, the words employed to express it should not be given such a narrow construction as will result in destroying its beneficent purpose, when from such language, and the general understanding of what it means, it is apparent that the Legislature intended to prevent the helpless ill being imposed upon by the promises of a cure when it was evident their condition was such that it could not be accomplished."

To sustain the contention of the plaintiff in error upon this proposition would be to nullify that section of our statute, and to hold that the Legislature, adopting it, did a vain and useless thing. The universal rule of statutory construction is that, when the intent of the Legislature can be determined from the statute, it is the duty of the courts to follow and enforce such intent. In construing statutes consideration is always given to the mischief to be corrected and the remedy to be afforded. As we regard this section of our statute, we think that it is not aimed at any unethical practices of physicians as interpreted by the medical fraternity, but was aimed to prevent acts on the part of physicians which are universally regarded as immoral and against good conscience, not only by the medical profession, but by laymen as well, and for which under the style of obtaining money under false pretenses our Criminal Code has provided the penalties of the law. The gist of the offense of which it is claimed plaintiff in error was guilty is duping the credulous and taking advantage of the afflicted by taking money from them with an assurance that they can be permanently cured when, in fact, their condition is incurable according to the general state of knowledge of the medical profession at that time. The word "incurable" is defined:

"Not curable; beyond the power or skill of medicine.' 22 Cyc. 74. "Not susceptible of cure; applied to both patients and disease." Dunglison's Medical Dictionary.

Section 2914, Revised Laws 1910, provides:

"Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears."

Section 4642, Revised Laws 1910, provides:

This case is the only one cited by counsel, and the only one which we have been able to find, which passes directly upon the point raised by plaintiff in error. The majority opinion undoubtedly sustains the contention of plaintiff in error. While the Colorado statute uses the words "manifestly incurable" instead of the word "incurable" as in our statute, we do not regard this as affecting the applicability of the majority opinion of the Colorado court, since the court there holds that the words "manifestly" and "incurable" must be taken as applicable to the disease Under these definitions and under the rules per se, and not to the condition of the patient of construction laid down as above in our suffering with the disease at the time his statutes we must conclude that the word "intreatment is undertaken by the physician. curable," in the section of the statute in quesThe record in the case at bar discloses that tion, is to be interpreted in its ordinary ac

* But the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any * statute of Oklahoma; but all such statutes shall be liberally construed to promote their object."

[5] The plaintiff in error complains of the admission in evidence by the trial court of an advertisement which is admitted to have been published by plaintiff in error. Plaintiff in error says that he was not charged with making grossly improbable statements, calculated to mislead the public, in advertising his business. While this is true, we do not think the court erred in the admission of this advertisement, since it tended in some degree to throw light upon a question properly before the court; i. e., whether or not plaintiff in error gave assurances of effecting permanent cures of incurable diseases.

ing that section, did not intend to do a use- | sufficient, since it advises him of the particu-
less thing, but intended the statute to be en-lar diseases the treatment of which he is
forced in accordance with an interpretation charged with having undertaken, especially
based upon the ordinary understanding of the as plaintiff in error did not seek to have
words used, both by laymen and physicians. these charges made more definite and certain.
In that view of the case we are clearly of
the opinion that the words "incurable dis-
ease" in the section of the statute in question
apply to the state of the disease which a
patient may have at the time the treatment
of it is undertaken by the physician, and
that, if a physician undertakes to treat a
patient who is suffering from a disease which
has in its progress reached an incurable state
according to the then general state of knowl-
edge of the medical profession, and accepts
a fee from the patient upon the assurance
that he can effect a permanent cure of such
disease, he would be guilty of unprofession-
al conduct as defined in that section of our [6] Plaintiff further complains that the
statute.
trial court in its findings in this cause found
plaintiff in error guilty of a charge upon
which the trial court, upon the objection of
plaintiff in error, had excluded all evidence.
The record seems to bear out the contention
of plaintiff in error in this particular. While
this is error, yet, as we have concluded that
the judgment of the trial court was right, the
fact that he may have included in his findings
a conclusion which was not supported by the
evidence, since he did make findings that are
supported by the evidence and which sustain
the judgment, we will not disturb the judg-
ment of the court therefor.

[7] Plaintiff in error further contends that
the findings of the court are not supported
by sufficient evidence. We have examined
the record upon the propositions complained
of by plaintiff in error, and we find sufficient
evidence to sustain the findings of the court
as to the incurable nature of the diseases un-
dertaken to be treated by plaintiff in error, as
to his assurances of effecting a permanent
cure, and as to his accepting a fee therefor.
It is urged by plaintiff in error that the writ-
ten guaranty which was introduced in evi-
dence, and which is as follows:
"Absolute Guarantee.
Okl.,

[4] Plaintiff in error complains of irregu- | larity and error in the proceedings before the state board of medical examiners and in the trial before the district court. He particularly complains of the sufficiency of the complaint filed before the state board. It is practically held unanimously by all the courts that such boards, in proceedings similar to the one at bar, do not act judicially, and are not judicial bodies, but that their action is merely administrative. It is also held that it is within the police power of the state to grant powers such as are sought to be exercised in this case to such boards as a part of the administrative arm of the government, and to provide for summary proceedings to be taken by such boards in cases similar to the one at bar. It is also held that it is not necessary in a trial under such a complaint that the proceedings shall be conducted with that degree of exactness which is required in trials before ordinary tribunals of justice, and that a complaint filed before a state board of health for the purpose of revoking the license of a physician is sufficient if it informs the accused not only of the nature of the wrong charged, but of the particular instances of its alleged perpetration. Munk v. Frink, 81 Neb. 631, 116 N. W. 525, 17 L. R. A. (N. S.) 439; Meffert v. Packer, 66 Kan. 710, 72 Pac. 247, 1 L. R. A. (N. S.) 811, affirmed, 195 U. S. 625, 25 Sup. Ct. 790, 49 L. Ed. 350; State Medical Board v. McCrary, 95 Ark. 511, 130 S. W. 544, 30 L. R. A. (N. S.) 783, Ann. Cas. 1912A, 631; State Board of Health v. Roy, 22 R. I. 538, 48 Atl. 802; State v. Chapman, 34 Minn. 387, 26 N. W. 123; State v. Feller, 34 Minn. 391, 26 N. W. 125. In view of the fact that the controversy is narrowed down to the one charge that plain--is not a guaranty of a cure, but only a tiff in error accepted a fee for the treatment guaranty to refund the fee in the event the of an incurable disease with the assurance that he could effect a permanent cure, we are of the opinion that the paragraph of the complaint which charges plaintiff in error with that offense against professional conduct is

66

191-.

"I, R. W. Freeman, M. D., party of the first
part, do hereby agree to refund all moneys paid
to me by H. S. Hawkins, party of the second
part, should he fail to receive a complete cure by
my treatment.
R. W. Freeman.

"I, H. S. Hawkins, party of the second part,
do hereby agree to follow the directions given
by R. W. Freeman, M. D., party of the first
part, through a period of time sufficient as
deemed by him to effect a complete cure. Should
I fail to follow the directions as given by him,
then I agree that this agreement becomes null
H. S. Hawkins."
and void.

treatment prove unsuccessful. We consider
this contract to be a mere subterfuge, and
have no doubt that it was drawn for the very
purpose of protecting plaintiff in error in a
case like this. But a reading of the entire

7

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