State ex rel. Bowers v. Moser

• Citation: 53 N.E.2d 893,222 Ind. 354
• Decision Date: 03 April 1944
• Docket Number: 27947.
• Parties: STATE ex rel. BOWERS, Secretary of Board of Medical Registration and Examination v. MOSER.
• Court: Indiana Supreme Court

53 N.E.2d 893

222 Ind. 354

STATE ex rel. BOWERS, Secretary of Board of Medical Registration and Examination v. MOSER.

No. 27947.

Supreme Court of Indiana

April 3, 1944

Appeal from Adam Circuit Court; Walter E. Helmke Judge.

James A. Emmert, Atty. Gen., Frank Hamilton, 1st Asst. Deputy Atty Gen., and Thomas L. Webber, Deputy Atty. Gen., for appellant.

McAdams & Lincoln, of Fort Wayne, and Nathan C. Nelson, of Decatur, for appellee.

SWAIM Judge.

This was an action under § 63-1311, Burns' 1933 (1943 Replacement), § 10712, Baldwin's 1934, to enjoin the appellee, Della Moser, from engaging in the practice of medicine in the State of Indiana until she should secure a license to so practice.

At the close of the plaintiff's evidence the defendant made a motion that a 'directed verdict for the defendant be entered herein, for the reason that insufficient evidence has been shown to substantiate the material allegations in the plaintiff's complaint * * *. ' The court sustained the motion and judgment was entered for the defendant. The correctness of this ruling is the only question presented by this appeal.

The right of the relator to maintain this action was not questioned by a demurrer.

The appellee insists that the evidence was insufficient to prove the material allegations contained in appellant's amended complaint.

The motion made by the appellee at the close of the appellant's case was in the nature of a demurrer to the evidence. Watson's Revision of Works Practice and Forms Vol. II, § 1548, p. 214. As such it admits all facts of which there was any evidence and all reasonable inferences which could be drawn from the evidence. Watson's Revision supra, § 1554, p. 217; 64 C.J. § 1023, p. 1211; Jacobs v. Jolley, 1902, 29 Ind.App. 25, 62 N.E. 1028.

There is no serious contention that there was not sufficient evidence to show that the appellee was at the time of the filing of the complaint, and had been for a number of years prior thereto, practicing medicine within the definition of said Act. In fact there was evidence to show that the practice continued for a considerable period of time after this action was commenced.

The appellee insists, however, that there was no evidence that she did not have a license to practice medicine. The testimony on that subject was given by the deputy clerk of the county in which the appellee was practicing. The deputy clerk testified that neither the documentary Physicians License Record nor the Physicians License Record, both of which were in the custody of said clerk's office, showed a license issued to the appellee. On being asked to examine the first of these two books the witness was asked whether or not it disclosed that a license to practice medicine was issued to the defendant, Della Moser. To the question the witness answered, 'I have searched the record, and find there isn't a license on record for Della Moser.' She was then asked, 'There isn't a license of any kind issued?' and she answered, 'No, there isn't.'

The appellee now objects that the witness failed to testify that those were the 'sole and only' records in the clerk's office of Adams County containing the registration of physicians' licenses; and that it was not shown that period of time the records covered. At the time the witness was being examined the appellee made no objection to the method of the examination of the witness and raised no question as to the records about which the witness was testifying. The evidence was sufficient to sustain a finding that at the time in question the appellee...