State ex rel. and to Use of Gibson v. Missouri Bd. of Chiropractic Examiners

• Decision Date: 04 February 1963
• Docket Number: No. 23733,23733
• Citation: 365 S.W.2d 773
• Parties: The STATE of Missouri at the Relation and to the Use of Dr. Robert Lee GIBSON, Potosi, Missouri, Appellant, v. The MISSOURI BOARD OF CHIROPRACTIC EXAMINERS, Dr. Arch G. Campbell, Member and Chairman of Said Board, Dr. Lial J. Shaw, Member of Said Board, and Dr. Durham, Secretary and Member of Said Board, Dr. Eugene Silver, Member of Said Board, and Dr. Dudley Ruopp, Member of Said Board, Respondents.
• Court: Missouri Court of Appeals

Page 773

365 S.W.2d 773

The STATE of Missouri at the Relation and to the Use of Dr Robert Lee GIBSON, Potosi, Missouri, Appellant, v. The MISSOURI BOARD OF CHIROPRACTIC EXAMINERS, Dr. Arch G Campbell, Member and Chairman of Said Board, Dr. Lial J Shaw, Member of Said Board, and Dr. Durham, Secretary and Member of Said Board, Dr. Eugene Silver, Member of Said Board, and Dr. Dudley Ruopp, Member of Said Board, Respondents.

No. 23733.

Kansas City Court of Appeals, Missouri.

Feb. 4, 1963.

Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for appellant.

Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondents.

HUNTER, Judge.

This is an appeal from a judgment of the Circuit Court of Cole County in an action for certiorari to review the action of the State Board of Chiropractic Examiners, respondents, in revoking the license of relator, Robert Lee Gibson, a chiropractic doctor.

On February 25, 1961, an action was commenced against relator by the State Board of Chiropractic Examiners by the filing and serving of a complaint and notice of hearing in which relator was charged with having on January 23, 1961, in the City of Potosi, Missouri, 'illegally exceeded the authority granted to you under said license (chiropractor's) in that you prescribed medicine to one Lonnie Ray Callahan, a child of five years of age, and administered said medicine to Lonnie Ray Callahan by placing a quantity of liquid into his ear and prescribed and furnished other medicines to be taken internally by the said Lonnie Ray Callahan, in the presence of his mother, Mrs. Lynn Callahan and Mrs. Charlotte Henry, all of which is illegal and in violation of Section 331.010 RSMo. 1949.'

A hearing on this complaint was held in Jefferson City on March 29, 1961, at which relator appeared with his attorney. As a result of the hearing the Board found:

'(3) That on or about the 23rd day of January, 1961, the Respondent did, at his office in the City of Potosi, County of Washington, State of Missouri, undertake to treat Lonnie Ray Callahan, at that time five years of age, for an ailment which represented to Respondent as an earache; that Respondent, at the time and place aforesaid, prescribed medicine to the said Lonnie Ray Callahan and administered medicine to Lonnie Ray Callahan by placing a quantity of liquid into his ear.

'(4) That, at the time and place aforesaid, Respondent prescribed and furnished to Lonnie Ray Callahan other drugs and medicines by giving them to Mrs. Lynn Callahan, mother of Lonnie Ray Callahan, there present; and that respondent instructed Mrs. Lynn Callahan as to the administration of said drugs and medicines.

'(5) That respondent charged a fee of two dollars and fifty cents ($2.50) for his treatment of Lonnie Ray Callahan on or about the 23rd day of January, 1961, and that Respondent, through his agent, accepted payment of that fee from Mrs. Lynn Callahan;

'(6) That at no time during his treatment of Lonnie Ray Callahan on or about the 23rd day of January, 1961, did Respondent practice on said Lonnie Ray Callahan the science and art of palpating and adjusting by hand the movable articulations of the spinal column for the correction of the cause of abnormalities and deformities of the body.'

The Board then made certain conclusions of law including

'(1) That Respondent's treatment of Lonnie Ray Callahan as described in Findings of Fact 3 through 6 was in excess of the authority granted to him as a chiropractor licensed under the laws of the State of Missouri;

'(2) * * * That Respondent's acts of prescribing and administering drugs as described in Findings of Fact 3 and 4 are in violation of Section 331.010, RSMo 1959, and, as such, constitutes illegal or immoral actions as proscribed by Section 331.060(2), RSMo. 1949; '(3) That Respondent's acts as described in Findings of Facts, 3 through 6, constitute deception or fraud in the practice of chiropractic as proscribed by Section 331.060(2), RSMo. 1959;

'(4) * * * That Section 331.060, RSMo. 1959, authorizes the State Board of Chiropractic Examiners to revoke the license of a chiropractor, if upon a hearing, it is proven beyond a reasonable doubt to the Board that the Respondent is guilty of immoral or illegal action or in any way guilty of deception or fraud in the practice of chiropractic;

'(5) * * * The Board concludes that, by reason of the Findings of Fact set out above and each of them, the Respondent is guilty of immoral or illegal action or guilty of deception or fraud in the practice of chiropractic; and that for such immoral or illegal action and for such deception or fraud in the practice of chiropractic on the part of Respondent, and each of the acts aforesaid, the license and renewal certificate of the Respondent should be revoked.' (Emphasis ours.)

The Board ordered the revocation. On certiorari, the Circuit Court of Cole County, Missouri, affirmed the Board's order. ¹ This appeal followed.

The State Board of Chiropractic Examiners is a duly created legal entity, consisting of five persons. Section 331.090 RSMo 1959, V.A.M.S. (All future statutory references are to V.A.M.S.) The board, rather than its individual members, is the real party in interest and is a necessary party. It is the law that where a legal entity or quasi public corporation is the real party, the fact that its component members are named parties does not vest the Supreme Court with jurisdiction under Article V, Section 3, of our State Constitution, even though such members are state officers. State ex rel. Gehrs v. Public Service Commission of Missouri, 338 Mo. 177, 90 S.W.2d 390; State ex inf. Wallach v. Schneider's Credit Jewelers, Mo.App., 243 S.W.2d 125. Hence, jurisdiction of the appeal lies in this court.

On this appeal four contentions of error are presented. Appellant first contends there was not sufficient competent evidence in the record to support the charge and finding that he illegally exceeded the authority granted him under his chiropractor's license 'in that you prescribed medicine and administered medicine * * * by placing a quantity of liquid into (Callahan's) ear and prescribed and furnished other medicine to be taken internally * * * in violation of Section 331.010.'

The undisputed evidence is that on January 23, 1961, Mrs. Viola Callahan took her then five year old son, Lonnie Ray, to appellant's office in Potosi, Missouri. The boy was crying because of pain in his left ear. Appellant examined the child's ear with an instrument that had a light in it, and stated his diagnosis as a mastoid ear. He then announced to the mother and aunt, Mrs. Henry, both of whom were present throughout the entire visit, that he was going to put drops in the boy's ear to kill the pain. He put three drops into the boy's ear, using an eye dropper. Appellant then gave the boy two packages of pills and directed the mother to 'give him one of the white ones and one of the yellow ones * * * every three hours'. He also gave the mother a bottle of ear drops, telling her to 'put three of them in at a time and if that doesn't do, put five drops in his ear.' According to both the mother and the aunt, at no time in his treatment of Lonnie Ray did Dr. Gibson massage any portion of the boy's body, and touched him only while he was looking in the boy's ear and when he administered ear drops. There was testimony by appellant and his wife that appellant did give the boy a neck adjustment. Appellant then charged $2.50 for treatment of Lonnie Ray Callahan, and that amount was subsequently paid to him in cash by Mrs. Callahan, who received a receipt for it. Appellant at the hearing stated with reference to the ailing ear, 'it has been customary for me to treat those conditions * * *. We had a complete course of eye, ear, nose, and throat, complete semester of it (in school) * * * and the type of treatment is the same as I did for the child other than I also used a cervical adjustment on the child.' Appellant stated that although the boy was in pain there was no emergency existing; that there was another chiropractor, two osteopaths and two medical doctors in Potosi.

Upon chemical analysis the glycerin ear drops also contained a small amount of benzocaine, a chemical which, when applied to the surface of the skin, acts as a local anesthetic, and also small amounts of alcohol, water, chloroform and ether in an oil base. Appellant stated the yellow tablets were 'placebos', or a neutral substance, and the white tablets were Vitamin B-1 tablets--that 'a placebo is a blank little tablet which * * * you use it for psychological effects'; and that the reason he gave the boy the placebo pills was to induce him to take the vitamin pills. He stated the vitamin pills were for nutritional purposes and that there was no relationship between the vitamins and the otitis media but that the boy looked like he could use some vitamins. On cross-examination appellant stated his diagnosis was otitis media, or inflamation of the middle ear; that he was trained in treating such conditions in his chiropractic studies, and that his text books said to use a solution of phenolglycerin, but his treatment was glycerin or any other oil solution.

Section 331.010 RSMo 1959, reads:

'Defining practice of chiropractic

'The practice of chiropractic is hereby defined to be the science and art of palpating and adjusting by hand the movable articulations of the human spinal column, for the correction of the cause of abnormalities and deformities of the body. It shall not include the use of operative surgery, obstetrics, osteopathy, nor the administration or prescribing of any drug or medicine. The practice of chiropractic is hereby declared not to be the practice of medicine and surgery or osteopathy within the meaning of chapter 337, RSMo., and not subject to the provisions of said chapter.'

Appellant's reasoning in connection with his first charge of error is that the ear...