State ex rel. Board of Medical Registration & Examination v. Henry
State ex rel. Board of Medical Registration & Examination v. Henry
Opinion of the Court
This is an appeal from an interlocutory order denying a temporary injunction, under § 63-1311, Burns’ 1943 Replacement.
Appellant brought this action to enjoin appellee from engaging in the practice of medicine without a license. On April 11, 1950, a hearing on the application for a temporary injunction was held by the court, evidence was introduced on the issue, and the court entered an order denying the temporary injunction.
The sole question presented is the alleged . error assigned in denying appellant a temporary injunction. Such assignment is proper to present the question on appeal. Koss v. Continental Oil Co. (1944), 222 Ind. 224, 52 N. E. 2d 614;
This court has held that the practice of chiropractic is the practice of medicine, and that the State may, by appropriate legislation, regulate the practice of medicine and restrict the same to those who have been licensed, by it. State ex rel. Board, etc. v. Hayes (1950), 228 Ind. 286, 91 N. E. 2d 913.
The verified complaint alleges ■; that appellee was practicing medicine without a license. The application
“ ‘Practice of medicine’ defined—Injunction to restrain unlicensed practicing.—To open an office for such purpose or to announce to the public in wiy way a readiness to practice medicine in any county of the state, or to prescribe for, or to give surgical assistance to, or to heal, cure or relieve, or to attempt to heal, cure or relieve those suffering from injury or deformity, or disease of mind or body, or to advertise, or to announce to the public in any manner a readiness or ability to heal, cure or relieve those who may be suffering from injury or deformity, or disease of mind or body, shall be to engage in the practice of medicine within the meaning of this act: (Emphasis supplied.) Provided, That nothing in this act shall be construed to apply to or limit in any manner the manufacture, advertisement or sale of proprietary medicines. It shall also be regarded as practicing medicine within the meaning of this act, if any one shall use in connection with his or her name, the words or letters, ‘Dr.,’ ‘Doctor,’ ‘Professor,’ ‘M.D.,’ or ‘Healer,’ or any other title, word, letter, or designation intending to imply or designate him or her as a practitioner of medicine or surgery in any of its branches: Provided, however, That this law shall be construed as applying only to those persons who pretend, claim, assert, or advertise that they diagnose, or in any manner physically treat human disease, injury or deformity, and shall not apply to those who endeavor to prevent or cure disease or suffering by spiritual means or prayer: And, provided, That this law shall not be construed to prevent any person who now holds or may hereafter obtain and hold a lawful license to practice any profession, calling or vocation from practicing such profession, calling or vocation in accordance with the terms of such license. . . . The attorney-general, prosecuting attorney, the state board of medical registration and examination, or any citizen of any county where any person shall engage in the practice of medicine, as herein de*223 fined, without having first obtained a license so to do, may, in accordance with the laws of the state of Indiana governing injunctions, maintain an action in the name of the state of Indiana to enjoin such person from engaging in the_ practice of medicine, as herein defined, until a license to practice medicine be secured. And any person who has been so enjoined who shall violate such injunction shall be punished for contempt of court: Provided, That such injunction shall not relieve such person so practicing medicine without a license from a criminal prosecution therefor as is now provided by law, but such remedy by injunction shall be in addition to any remedy now provided for the criminal prosecution of such offender. In charging any person in a complaint for injunction, or in an affidavit, information or indictment, with a violation of this law by practicing medicine, surgery or obstetrics without a license, it shall be sufficient to charge that he did, upon a certain day and in a certain county, engage in the practice of medicine, he not having any license to so do, without averring any further or more particular facts concerning the same.” (Emphasis supplied.)
Appellant contends that the undisputed and sole and only evidence introduced revealed that appellee was practicing medicine without a license; and appellee argues that the denial of the temporary injunction was entirely within the sound discretion of the trial court and should not be disturbed.
The evidence revealed that appellee maintained an office with a reception room and treatment room at 1218 Kossuth Street, in Lafayette; that there was an examination table, chairs, and the usual furniture found in the office of a professional man; that on the outside of the premises there was a sign with the lettering “R. W. Henry Chiropractor”; that the investigator for appellant had visited the premises and that this sign was on the premises on August 29, 1948. The evi
“R. W. HENRY, D.C.
Scientific Chiropractic NCM and X-ray Phone 4941
1218 Kossuth Street, Lafayette, Indiana”
The witness further testified that he was a photographer, and that he took a picture of the entrance to appellee’s office, showing the sign, and made proper identification of the photograph. Also admitted into evidence was the pamphlet above referred to.
The verified complaint, with the two supporting affidavits, was introduced and admitted into evidence.
Appellee’s sole evidence was the deposition of Dr. Paul R. Tindall, Secretary of the State Board of Medical Registration and Examination. The deposition showed that, as Secretary, he signed the affidavit to the complaint for injunction; that he was not personally acquainted with Russell W. Henry, had never visited his office, and never had any knowledge as to the practice of Russell W. Henry, except the information that was produced before the State Board of Medical Registration and Examination; that he was instructed by such Board to sign the affidavit; that the schedule of minimum requirements to be met by applicants to practice chiropraeties is the same as for medical colleges; that, in so far as the witness knew, the Board .has a form to be used by applicants who apply for an examination for admission to practice chiropraeties, and that it is the same form that is used in applying for admission to practice medicine; that a chiropractor can ■ receive a license to practice in Indiana if he meets the same requirements as medical men; that there is no examination held exclusively for' graduates of chiropractic colleges, whether such college is on the approved list or not; that an applicant could be admitted if he met the same requirements as would be required of a doctor of medicine; that a man, to take the examination, must be a graduate of an approved
The above, in substance, was all of the evidence introduced by appellant and appellee, and is undisputed and uncontradicted.
This court cannot weigh the evidence, but can only review the evidence for the purpose of deciding whether or not the trial court was arbitrary or abused its discretion. It is only the alleged abuse of the trial court’s discretion which is reviewable upon appeal. Tuf-Tread Corp. v. Kilborn (1930), 202 Ind. 154, 172 N. E. 353; State ex rel. Board, etc. v. Hayes, supra.
The evidence showed that appellee was practicing medicine within the definition of the “practice of medicine,” as defined by the Legislature in § 63-1311, Burns’ 1943 Replacement, supra. This court said in the Hayes Case that if the evidence is undisputed and uncontradicted that appellee was practicing medicine without a license, the court had no discretion but, as a matter of law, should have granted the temporary injunction.
Appellee further contends that, since this case is in equity, the State of Indiana was required to do equity; that the testimony of the Secretary of the Medical Board showed that the Board was administering the law in a discriminatory manner, and appellant therefore had not done equity and did not come into court with clean hands, and hence was not entitled to injunctive relief.
The evidence is undisputed and uncontradicted that appellee was practicing medicine without a license. The court had no discretion, but, as a matter of law, should have granted the temporary injunction. State ex rel. Board, etc. v. Hayes, supra.
Judgment reversed, with instructions to the trial court to grant the temporary injunction.
NOTE.—Reported in 97 N. E. 2d 487.
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