State, ex rel. Johnson v. Wagner
| Decision Date | 02 May 1941 |
| Docket Number | 30980 |
| Citation | 297 N.W. 906,139 Neb. 471 |
| Parties | STATE, EX REL. WALTER R. JOHNSON, ATTORNEY GENERAL, APPELLANT, v. WILLIAM G. WAGNER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Scotts Bluff county: CLAIBOURNE G. PERRY, JUDGE. Affirmed in part and reversed in part.
AFFIRMED IN PART AND REVERSED IN PART.
Syllabus by the Court.
1. The character and scope of occupations classed as professions are matters of which the courts will take judicial notice.
2. In the consideration of a pleading a court must read the same as if it contained a statement of all matters of which it is required to take judicial notice, even when the pleading contains an express allegation to the contrary.
3. In determining the meaning of the word " osteopathy," the court may resort to the definition and description of it given by the founder of the practice, by those who teach and practice it, and by the lexicographers who define it as a science.
4. The legislature has by statute recog nized a difference between the practice of medicine and surgery and the practice of osteopathy, and has provided for the issuance of different certificates to the two classes of practitioners by different boards of examination and registration using different standards in harmony with their respective qualifications.
5. The practice of osteopathy consists of a system of manipulation of the limbs and body of the patient with the hands by kneading, rubbing or pressing upon the parts of the body without the aid of medicine or operative surgery.
6. A statute granting a licensed osteopath the right to practice osteopathy in all its branches as taught in recognized osteopathic colleges does not authorize such licensee to practice outside the recognized field of osteopathy, even if subjects outside such field are taught in such colleges.
7. The practice of operative surgery in its commonly accepted meaning requires a license to practice medicine and surgery as provided by section 71-201, Comp.St.Supp. 1939.
8. Osteopathic physicians are entitled to perform surgery under the provisions of the osteopathic statute if the surgery is confined to surgery as it was taught and used as a part of the osteopathic system of healing, which in the main was by manipulation, but are not entitled to enter into the general field of operative surgery with surgical instruments.
9. The history and construction of the statutes relating to the practice of obstetrics require the conclusion that the legislature has recognized that the issuance of a license to practice osteopathy authorizes the licensee to engage in the practice of obstetrics.
10. The act of 1919 (Comp.St.1922, sec. 8174) recognized the use of anesthetics as a branch of osteopathy in this state, and the act of 1927 (Comp.St.1929, sec. 71-1705) preserved such right by not depriving licensed osteopaths of the privilege previously granted.
11. The practice of obstetrics and the use of anesthetics are not within the definition of osteopathy but are in addition to it, and except for legislative action they would not be within the scope of the license to practice osteopathy.
Appeal from District Court, Scotts Bluff County; Perry, Judge.
Suit by the State of Nebraska, on the relation of Walter R. Johnson Attorney General, against Roy Jackson Gable, an osteopathic physician, to enjoin him from engaging in the practice of medicine and operative surgery within the state, and from publicly professing to be a physician, surgeon, or obstetrician. From a judgment in favor of the defendant, the state, opposed by the defendant and William G. Wagner and Lillian H. Wagner, appeals.
Judgment in accordance with opinion.
Walter R. Johnson, Attorney General, Don Kelley and Rush C. Clarke, for appellant.
Beeler, Crosby & Baskins and Mothersead & York, contra.
Heard before ROSE, PAINE, CARTER, MESSMORE and YEAGER, JJ., and CHAPPELL, District Judge.
This is a suit brought by the attorney general to enjoin the defendant, Roy Jackson Gable, an osteopathic physician, from engaging in the practice of medicine and operative surgery within this state and from publicly professing to be a physician, surgeon, or obstetrician. The defendant filed an answer in which he denied that he had ever engaged in the practice of medicine, or professed publicly any right to do so. He alleges, however, that he is an osteopathic physician, surgeon and obstetrician and asserts a right to engage in the practice of operative surgery and obstetrics and to hold himself out to the public as one qualified to do so. The attorney general thereupon moved for a judgment on the pleadings, which was overruled by the trial court, and a judgment entered in favor of the defendant. The state thereupon appealed.
The question whether the defendant may lawfully engage in the practice and dispensing of medicine is not an issue on this appeal. Whether defendant may lawfully engage in the practice of operative surgery and obstetrics and engage in the use of anesthetics in the manner alleged in defendant's answer are the questions presented by the motion for judgment on the pleadings. The correctness of the trial court's ruling on this motion is the controlling factor in this appeal.
The defendant alleges that he is a graduate of the American School of Osteopathy at Kirksville, Missouri, a school of osteopathy recognized by the American Osteopathic Association. On June 13, 1922, defendant was issued a license to practice as an osteopathic physician and surgeon by the department of public welfare of the state of Nebraska. The answer admits and alleges that defendant has performed surgical operations, including tonsillectomies, appendectomies, circumcisions, an amputation of a toe, rectal operations, hysterectomies, operations for hooded clitoris and laparotomies, all of such operations being performed with instruments and by incisions of the patients' bodies; that he has engaged in the practice of obstetrics and has used anesthetics; all of which the defendant alleges that he will continue to do under claim of right.
It cannot be questioned that a person engaging in the practice of medicine and surgery without the required statutory license may be restrained by injunction. Comp. St. 1929, sec. 71-801. If, therefore, the admissions and allegations of defendant's answer constitute the practice of medicine and surgery as defined by section 71-1401, Comp. St. 1929, the defendant should be enjoined from so doing. If said acts are within the scope of the practice of osteopathy as defined by our statutes on the subject, the defendant is then within his rights and not subject to restraint for so doing.
The question is raised whether the character and general duties of occupations classed as professions are determined as questions of law or fact. We think the rule is that they are questions of fact of which the courts will take judicial notice. Certainly, the question whether a specific act constitutes the practice of osteopathy is not subject to proof by expert witnesses. The absurdities which would be certain to follow such a construction of the rule in question are too obvious to require an exposition here. The general rule of pleading, which admits as true all facts well pleaded upon the filing of a general demurrer or a motion for a judgment on the pleadings, has no application to facts of which a court may take judicial notice, and such demurrer or motion does not therefore admit a conclusion of law deduced from such facts.
The general rule seems to be: "There is apparently no dissent from the proposition that in the consideration of a pleading the courts must read the same as if it contained a statement of all matters of which they are required to take judicial notice, even when the pleading contains an express allegation to the contrary." Chavez v. Times-Mirror Co., 185 Cal. 20, 195 P. 666. See, also, Livermore v. Beal, 18 Cal.App.2d 535, 64 P.2d 987; Verde River Irrigation & Power District v. Salt River Valley Water Users' Ass'n, 94 F.2d 936; Hinds v. Federal Land Bank of New Orleans, 235 Ala. 360, 179 So. 194; Richter v. City of Lincoln, 136 Neb. 289, 285 N.W. 593.
Applying this rule to the pleadings before us, the allegations of defendant's answer to the effect that the acts admitted constitute the practice of osteopathy are mere conclusions of law. The allegation of a sound conclusion of law is always treated as superfluous and the allegation of an unsound conclusion is entirely disregarded. It matters not in the instant case whether the conclusions pleaded are true or not, for that which is judicially known may not be successfully controverted by pleadings, or made issuable by them. National Supply Co. v. Chicago & N.W. R. Co., 108 Neb. 326, 187 N.W. 917; State v. Rolio, 71 Utah 91, 262 P. 987.
This court is therefore required to determine the meaning of the term "osteopathy" in the same manner as any other fact of which it is required to take judicial notice. It may resort to the definition and description of it given by the founder of the practice, by those who teach and practice it, and by the lexicographers who define it as a science. State v. Bonham, 93 Wash. 489, 161 P. 377.
Much has been written by the founder of osteopathy, and others learned in the practice of its profession, as to the fundamentals of the science of osteopathy. To give a resume of these writings would unduly lengthen this opinion. We think a fair conclusion to be drawn from all of them was ably expressed in Bragg v. State, 134 Ala. 165, 32 So 767, where the supreme court of Alabama said: ...
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State ex rel. Johnson v. Wagner
...139 Neb. 471297 N.W. 906STATE EX REL. JOHNSON, ATTY. GEN.,v.WAGNER ET AL.No. 30980.Supreme Court of Nebraska.May 2, [297 N.W. 907]Syllabus by the Court. 1. The character and scope of occupations classed as professions are matters of which the courts will take judicial notice. 2. In the cons......