Spurgeon v. Rhodes

• Decision Date: 19 June 1906
• Docket Number: No. 20,728.,20,728.
• Citation: 78 N.E. 228,167 Ind. 1
• Parties: SPURGEON et al. v. RHODES.
• Court: Indiana Supreme Court

167 Ind. 1

78 N.E. 228

SPURGEON et al.

v.RHODES.

No. 20,728.

Supreme Court of Indiana.

June 19, 1906.

Appeal from Circuit Court, Marion County; W. J. Buckingham, Special Judge.

Action by John Milton Rhodes against W. A. Spurgeon and others. From an order granting a temporary injunction, defendants appeal. Reversed.

Gavin & Davis, for appellants. Daniel A. Brown, Jr., and Frank P. Baker, for appellee.

MONKS, J.

It appears from the record that in 1899 appellee was duly licensed to practice medicine in Marion county, Ind., and has since that time engaged in such practice. In June, 1905, a writing making definite and specific charges of acts of gross immorality, verified by the affidavit of one Eva Boykin, was presented to the state board of medical registration and examination under section 7322, Burns' Ann. St. 1901, asking that his license be revoked therefor. Said board fixed a time and place for the hearing of said charges and gave appellee notice thereof as required by section 7322, supra. Thereupon before the time fixed for said hearing appellee brought this suit to enjoin appellants, the members of said board, from proceeding to hear and determine charges of “gross immorality” which were then pending against him before said board, and from revoking his license to practice medicine. A temporary injunction was granted by the judge in vacation upon notice to appellants, and from such order this appeal was taken.

It is insisted by appellants that the court erred in granting said temporary injunction. Section 7319, Burns' Ann. St. 1901, authorizes the granting of a license to practice medicine upon a certificate issued by the state board of medical registration and examination. Section 7322, Burns' Ann. St. 1901, provides that any such license may be revoked by said board, if the person holding the same is “guilty of a felony, or gross immorality, or is addicted to the use of liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery.” Said section provides further that: “A specific written charge, verified by affidavit, must be presented to the board, making definite and specific charges of such facts against the holder of such license. The board shall thereupon fix a time and place for the hearing of such charges, at which the person charged may appear and defend against the same. A copy of such charges, together with a notice of the time and place fixed for the hearing, shall be served upon the person so charged at least twenty (20) days before the time set for the hearing of the same. If, after such hearing, the board revokes such certificate and license, such order shall be by said board entered upon its record.” In case the board revokes the license an appeal may be taken to the circuit or superior court of the county in which said license was issued. On appeal the verified charges are treated as the complaint, and “the accused may plead to said charges and issues may be formed thereon as in any civil case.” The complaint averred: That the individual appellants were members of and composed the state board of medical registration and examination. That in 1899 the appellee was duly licensed to practice medicine in Marion county, and has since that time been engaged in such practice, and that this right is of value to him and is a property right. That the board has “conspired with one Eva Boykin to fraudulently deprive” appellee of his license. That in pursuance of said conspiracy said board employed said Eva Boykin to visit him and to attempt to induce him to commit an abortion upon said Eva Boykin, and in furtherance of said conspiracy said board hired said Eva Boykin to file affidavits before it. That the appellee had been notified by the board of the filing of charges against him, charging him with gross immorality and for answering which he was required to appear before the board on the 16th day of August. That he was thus required to appear under and by virtue of authority claimed to be conferred by an act regulating the practice of medicine as amended in 1901, which provided that upon charges of gross immorality a license might be revoked by the board. That the charge against him as given-gross immorality-is a “fraudulent one,” made by said Boykin at the instigation of said board, and in furtherance of the conspiracy she filed said affidavit before said board, and charged him with unfitness to practice medicine, in that he, believing the affiant to be pregnant, had agreed to perform an abortion upon her. That the said Eva Boykin, the secret employé and conspirator of said board, acting for and on its behalf and in furtherance of said conspiracy, filed the attached fraudulent affidavit, charging this petitioner with gross immorality such as to unfit him for his practice. “That it is the intention of said board to hear and determine said charges, and said board intends and will, as previously conspired, revoke the license of your petitioner unless restrained from so doing by this court.” That said board has “fraudulently conspired” with said Eva Boykin to deprive the appellee of his license, “in that said Eva Boykin was employed by and paid by said board to visit certain physicians, among them the plaintiff, and to then make affidavit against them. That said Eva Boykin is outside of the state of Indiana and a fugitive from justice. That said board will not produce her at the hearing of the charges against the appellee. That said board will not allow the appellee to produce witnesses in his defense. That the attorneys for the said board have announced that said board intended to revoke the appellee's license, and that he would not be accorded the right to examine his accusers under oath. That the hearing of said charges will work great harm and injury to the appellee in his business and profession, and will injure his reputation, whether they are sustained or not, and whether said license is revoked or not. Wherefore he asks for a permanent injunction and temporary restraining order preventing said board from trying the appellee and from revoking his license.” The charges show that the appellee had offered to perform this abortion upon the said Eva Boykin, believing her to be pregnant, for $10, or $15 or $25, according to the character of the opertion. This complaint was sworn to by the appellee, who states that the matters and facts therein contained are true “as he is informed and verily believes.”

An affidavit of a person not a party to this proceeding was filed in support of said application for injunction, which stated that an attorney for appellants had said to affiant “that said Eva Boykin and a man whose name he had agreed not to disclose were gathering evidence against physicians, and that certain doctors, among them Dr. Rhodes (appellee), had been notified to appear before the board for trial, as they desired to make some examples in order to stop abortions; that Eva Boykin was a ‘tool,’ or ‘stool pigeon,’ and had been employed by the board to gather evidence. Said attorney further stated to said affiant that the board would not have said Eva Boykin at the trial of said Rhodes; that in fact the board would introduce no testimony in any of the cases then pending, other than the affidavits which were filed against the physician on trial.” This affidavit and the verified complaint were all the evidence given by the appellee at the hearing of said application. The affidavits of five members of the board were read in evidence. These affidavits were substantially the same, and each alleged that no steps of any kind had been taken or would be taken to wrongfully deprive appellee of his license; that Eva Boykin had not been hired to make said affidavits; that said board had no intention to revoke appellee's license unless the evidence, when heard, justified and required it; that it is not true that said board will not allow appellee to produce witnesses in his defense, but, on the contrary, it is and always has been the intention of said board in this case, and the uniform practice of said board in like cases, to permit oral evidence and witnesses to be examined if the party so desired; that the members of said board had no intention or purpose except to hear the evidence fairly and impartially, and then to fairly and impartially determine his rights as the law and the preponderance of the evidence require. Appellants also read in evidence the affidavit of their attorneys, which states that said attorneys never said that the board intended to revoke appellee's license, nor did the board, so far as their information and knowledge goes, have any such intention, or any intention, except to hear the evidence and fairly determine whether or not the charges were sustained.

Appellants contend that appellee's affidavit, being only upon information and belief, cannot be accepted in a court when the matter is in controversy. It has been held as a general rule that when a party seeks a temporary restraining order, which in this state is without notice, if the facts and circumstances are not within his personal knowledge, he should state them upon his information and belief, and annex or file therewith the affidavit of some other person, having personal knowledge of the facts alleged, that the same are true upon his personal knowledge of the facts. Beach's Mod. Eq. Prac. § 769, and cases cited; High on Injunctions (4th Ed.) §§ 35, 1567, 1569, 1574, 1575, 1581; Gibson's Suits in Chancery, § 818; Campbell v. Morrison, 7 Paige (N. Y.) 157;Bank of Orleans v. Skinner, 9 Paige (N. Y.) 305;Youngblood v. Schamp, 15 N. J. Eq. 42;Manistique Lumber Co. v. Lovejoy, 55 Mich. 189, 20 N. W. 899; Brooks & Hardy v. O'Hara Bros. (C. C.) 8 Fed. 529;Ballard v. Eckman & Vetsburg, 20 Fla. 661, 675, 676. As to the correctness of the rule we need not decide, for the temporary injunction was granted upon notice to appellants, and in such a case the fact that many or all of the...