Harris v. Boyd

• Decision Date: 02 June 1931
• Docket Number: Case Number: 19982
• Citation: 149 Okla. 196,1931 OK 304,299 P. 888
• Parties: HARRIS et al. v. BOYD.
• Court: Oklahoma Supreme Court

1931 OK 304

299 P. 888

149 Okla. 196

HARRIS et al. v. BOYD.

Case Number: 19982

Supreme Court of Oklahoma

Decided: June 2, 1931

Syllabus

¶0 1. Physicians and Surgeons--Measure of Damages for Fraud in Pretending to Be Physician and Prescribing for Disease.

In an action for damages against a person for falsely representing himself to be a physician and that he has discovered a rare medicine which will cure all diseases, recovery may be had, where the proof is sufficient, for injury to health and pain and suffering caused from the treatment. In such action the measure of damages is not limited to the amount paid for the treatment.

2. Same -- Evidence of Result of Other Treatments in Similar Cases.

In an action for damages for injuries suffered in a treatment for a disease by one not licensed to practice medicine, evidence as to the result of treatments by defendant of other similar cases is inadmissible.

3. Trial--Refusal of Requested Instructions Covered in General Charge.

The refusal of the trial court to give a requested instruction is not error where the same matters are substantially covered in the general instructions.

4. Appeal and Error--Indefinite Assignment of Error in Admission of Evidence.

An assignment that the court erred in admitting evidence without specifically pointing out the evidence objected to is too indefinite to require consideration by this court.

5. Trial--Sufficiency of Plaintiff's Evidence as Against Demurrer.

Where the evidence offered by plaintiff is sufficient to establish a prima facie case, it is not error to overrule a demurrer thereto.

Appeal from District Court, Tulsa County; John Ladner, Judge.

Action by Stella Boyd against James M. Harris and another. Judgment for plaintiff, and defendants appeal. Affirmed.

H. B. Martin, Harry E. Stege, and Woodson E. Norvell, for plaintiffs in error.

Ellis A. Robinson and Quincy J. Jones, for defendant in error.

HEFNER, J.

¶1 This is an action for damages by Stella Boyd against James M. Harris and Vera Harris to recover damages for falsely representing defendant James M. Harris to be a licensed physician and able to cure any and all human diseases.

¶2 Defendants' answer consisted of a general denial. The trial was to a jury, resulting in a verdict and judgment in favor of plaintiff in the sum of $ 2,000.

¶3 We shall first consider the assignment that the court erred in overruling the demurrer to the evidence as to defendant Vera Harris. The evidence discloses that plaintiff was suffering from some ailment for several months prior to the time she consulted defendants. That, in May, 1925, she and her husband went to defendants' offices in the city of Tulsa, Okla., and there met and consulted with defendant Vera Harris; that she was advised by Mrs. Harris of the ability of Dr. Harris, referring to James M. Harris, and his wonderful and extraordinary remedies; that after this consultation she was conducted into the private office of Dr. Harris, who made a diagnosis of her case, and after such diagnosis advised her that she was suffering from weak heart, weak lungs, weak kidneys, and tuberculosis of bone tissue; that she was dying by inches and that unless she took immediate treatment her life would be short; that the doctor then told her of his medicine, "Oil of Radium," and advised her that his treatment would cost her $ 125, and further advised her that unless she decided to immediately take the treatment she might not be able to procure it, as the medicine was a rare medicine and could not be procured in America. The evidence further establishes that, relying upon these representations, plaintiff decided to take the treatment and paid the defendant Vera Harris the sum of $ 125.

¶4 It is further established by the evidence that the defendants worked together and divided the profits. The evidence is undisputed that Dr. Harris was not a licensed physician. His medicine was taken by plaintiff as prescribed, and her testimony is that it caused a burning sensation in her stomach and caused her considerable pain and suffering. Plaintiff also established that no such medicine as "Oil of Radium" is known to the medical fraternity. The evidence is also conclusive that all of these representations made by defendants were false. It is also established that after taking defendants' treatment for some time plaintiff consulted a physician and ascertained that she was suffering from chronic appendicitis. That she was operated on for this trouble and thereafter regained her health. We think this evidence sufficient to establish a case against defendants and also to connect Vera Harris with the transaction. The demurrer as to her was properly overruled.

¶5 It is conceded by defendants that the evidence is sufficient to establish a case against defendant James Harris, but they contend that the action as to him is one for breach of contract and that plaintiff was only entitled to recover the sum of $ 125, the amount paid for the treatment. The same contention was made in the case of Harris v. Graham, 124 Okla. 196, 255 P. 710. It is there said:

"In an action for damages based upon fraud, in pretending to be a physician and prescribing a sure remedy for a disease, resulting in personal injury to the plaintiff, if there is any competent evidence tending reasonably to support the verdict of the jury, the judgment rendered pursuant thereto will not be disturbed by this court on appeal.

"In an action, as above stated, it is not error, but correct, for the court to instruct the jury that, if they find from the evidence that the defendant has been guilty of fraud toward the plaintiff, they should find for the plaintiff, and, in determining the amount of damages sustained, they may take into consideration any injury to plaintiff's health, any pain

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