Harris v. Graham

• Decision Date: 02 March 1926
• Docket Number: Case Number: 16211
• Citation: 255 P. 710,124 Okla. 196,1926 OK 193
• Parties: HARRIS v. GRAHAM.
• Court: Oklahoma Supreme Court

1926 OK 193

255 P. 710

124 Okla. 196

HARRIS v. GRAHAM.

Case Number: 16211

Supreme Court of Oklahoma

Decided: March 2, 1926

Syllabus

¶0 1. Damages--Fraud--Pretending to be Physician.

In all 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.

2. Same--Instructions of Court on Fraud.

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 or suffering caused by the fraudulent acts of the defendant; and it is not error, but correct, for the court to instruct the jury that they may take into consideration the facts and circumstances, if any, tending to show that plaintiff's disease was aggravated, or whether proper treatment thereof was delayed or made impracticable.

3. Same--Instructions--Practice of Fraud.

In an action as above stated, it is not error, but correct, for the court to charge the jury, if they find from the evidence that the defendant practiced a fraud upon the plaintiff in pretending to be a physician, and treated her to her injury, and she submitted to the treatment in reliance upon such fraud, then they should find damages in such amount as the evidence showed to be the result of such fraud.

Commissioners' Opinion, Division No. 3.

Error from District Court, Tulsa County; Z. I. J. Holt, Judge.

Action by Mary A. Graham against James M. Harris for damages. Judgment for plaintiff, and defendant appeals. Affirmed.

N.E. McNeill, for plaintiff in error.

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

THREADGILL, C.

¶1 This was an action for damages by defendant in error as plaintiff against the plaintiff in error as defendant, and we will refer to the parties in this opinion as they appeared in the trial court.

¶2 On May 16, 1923, plaintiff filed her petition in which she alleged, in substance that about October 19, 1922, she was afflicted with a cancerous growth upon her left breast, which at that time was curable, and on said date came to the office of said defendant, which was located near the city of Tulsa, to consult him as to her affliction; that he had, for a long time prior thereto, held himself out as a physician and surgeon who was able to treat and cure cancers; that she consulted him and he diagnosed her case by rubbing, the fingers of his left hand along on her left arm, and then informed her that she did not have a cancer; that she did not have any "virus" in her blood; that it "takes four degrees for cancer"; that she had a growth that would develop into a cancer if left alone without treatment; that she also had kidney trouble; that he showed her two 16-ounce bottles filled with a reddish fluid, and said the fluid was "oil of radium," and the two bottles contained sufficient medicine to cure her; that the two bottles were worth $ 125; that she might have to take one-half a bottle more; that she could rub a little of the one bottle on the surface of the growth every day and take two teaspoons full every day internally; that she paid him the $ 125 for the two bottles of medicine and proceeded to follow his directions, and when she had taken about one-half of it during the six weeks following, she returned to him, and upon examination he advised her she was improving and would be well in a short time; that she continued the use of the said medicine during the next three weeks, taking it all as directed; that she again returned to his office for further examination, and he ran his fingers along her left arm, and in an excited voice exclaimed in alarm: "My God, woman, what have you been doing? There is virus in your blood now." He offered to furnish her more of the "oil of radium" of a "higher specific," but the same would cost her $ 45, but if she would wait about a month he would furnish it for nothing; that she returned in about a month, and he would not examine her and would not give her any attention, that his secretary gave her a bottle of medicine and advised her to come back in about a week, which she did. On this visit he told her she was doing all right, but she must have more medicine for the "virus in the blood" and which had set up in the other breast, and must have the "higher specific" to cure her; he demanded a check for $ 45, which she gave for a bottle of the "higher specific"; that her husband refused to allow the bank to honor the check; that defendant came to see her about it, was very angry, used profane language; said the government was backing him; that he was worth $ 50,000, and he would spend all of it before he would allow plaintiff to stop payment on said check. Plaintiff alleges that the statements and claims of defendant as a physician were false and fraudulent, and made with corrupt design to cheat and defraud plaintiff, and to obtain money from her without any consideration; that he was, not a physician or surgeon; that he had no experience, knowledge, or skill required by law for the practice of medicine; that his pretensions as a physician, and his examination and advising her, were all in pursuance of a malicious and fraudulent design to cheat and defraud her and extract money from her, well knowing that he could not render her any assistance as a physician; that by reason of said acts of defendant, all of which she relied upon, she was caused to neglect proper medical attention, and her disease grew worse until too late to obtain a cure, and which said acts were the proximate cause of said malady becoming incurable. She states that she is entitled to exemplary damages and that by reason of the acts of the defendant, as above stated, she is entitled to damages in the sum of $ 10,000, for which she prays judgment. Defendant filed answer consisting of general denial, except certain facts admitted. He admitted that he was a physician; that plaintiff came to him for treatment, and he diagnosed her case, and gave her proper treatment and direction, but she failed to follow his directions. He further pleads that he had been successful in his treatment of cancer and other diseases. There was a reply of general denial. The issues as thus made up were tried to a jury April 2, 1924, and resulted in a verdict in favor of plaintiff for $ 7,500 as actual and $ 2,500 for exemplary damages, and the court rendered judgment accordingly, and the defendant has appealed asking that the judgment be set aside and a judgment rendered in his favor.

¶3 There are several assignments of error but only two are urged by defendant.

1. The first is that the evidence is not sufficient to show that the fraud and deceit complained of in the petition were the cause of any injury to plaintiff, except the loss of the $ 125 expended for the "oil of radium." We cannot agree with this contention. Defendant stated in his answer that he was a physician; that plaintiff came to him for treatment; that he prescribed proper treatment for her, but she failed to follow his directions. This was his affirmative defense. The evidence shows that he was not a physician under the laws of this state, but he held himself out by his acts as a physician. His secretary, in the front part of the office, called him "doctor"; his attorney in representing him, in his defense, called him "doctor." In examining the plaintiff he spoke of successful cures performed by him for cancer. He said that the two bottles of medicine called "oil of radium" would cure her, she might have to take another one-half bottle, but the treatment would effect the cure. He diagnosed her case by rubbing his fingers along the left arm instead of examining the cancerous growth. He said she did not have cancer, no "virus" in the blood, she lacked "two degrees of cancer" he said, but without treatment it would develop into cancer. About six weeks after this, and after she had used the two bottles of "oil of radium." when she went to him for further advice, again rubbing his fingers along the left arm he declared she had "virus" in her blood, and the right breast was becoming infected, and advised "oil of radium" of a "higher specific." The evidence further shows that she rubbed the medicine on the cancerous growth, as defendant directed, and it gave her pain and caused a bloody substance to exude from the growth, and the cancer continued its development as before, and, at the time the case was tried, was pronounced by physicians as incurable. The evidence further shows that the "oil of radium" was unknown to medical science. We think the evidence was sufficient to show that the defendant was not a physician; that his manner of diagnosing was absurd; that the plaintiff was a woman about 62 years of age; she was a plain country woman with very limited intelligence; that she trusted the advice of the defendant as a physician, and relied upon his treatment to cure her; that the treatment he gave her was a deception and without any curative merits; that it cause her pain and aggravated the disease and caused delay in seeking other treatment, until the cancer reached the incurable status, and we think the jury was warranted in finding from the evidence the the defendant practiced fraud and deceit on the plaintiff to get money from her, knowing that the remedy he offered was worthless as a curative agency, and this remedy was not only worthless, but aggravated the development and caused her to suffer, and all of the acts and pretensions of the defendant were the proximate cause of her delay and failure to obtain scientific and skillful treatment until it

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