Yoshizawa v. Hewitt

• Decision Date: 02 September 1931
• Docket Number: No. 6371.,6371.
• Citation: 79 ALR 317,52 F.2d 411
• Parties: YOSHIZAWA v. HEWITT et al.
• Court: U.S. Court of Appeals — Ninth Circuit

79 ALR 317, 52 F.2d 411 (1931)

YOSHIZAWA v. HEWITT et al.

No. 6371.

Circuit Court of Appeals, Ninth Circuit.

September 2, 1931.

Charles B. Dwight, of Honolulu, Hawaii, for appellant.

Harry R. Hewitt, Atty. Gen., and Earl McGhee, Deputy Atty. Gen., of the Territory of Hawaii, for appellees.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

SAWTELLE, Circuit Judge.

This is an appeal from a decree of the Supreme Court of the Territory of Hawaii made and entered on November 17, 1930, pursuant to an opinion and decision of the said court made and entered on the same date.

In July, 1930, hearings were begun before the board of health of the territory of Hawaii upon a complaint charging appellant with professional misconduct and gross carelessness and/or manifest incapacity as a physician and praying that his license to practice medicine be revoked. The charges arose under paragraphs 1 and 10 of section 1029 of the Revised Laws of Hawaii 1925, as amended by Laws 1925, Act 26, § 5, which provides:

"Sec. 1029. Revocation of licenses. Licenses to practice medicine and surgery may be revoked by the board of health at any time for the following causes:

"1. Procuring or aiding or abetting in procuring a criminal abortion; * * *

"10. Gross carelessness and manifest incapacity; any one or more of said causes having been proven to the satisfaction of the board of health. In case any license is revoked for any of the causes named in this section, the holder thereof shall be immediately notified of such revocation, in writing, by the board of health."

While the hearings were in progress, appellant filed a bill in the Circuit Court of the First Judicial Circuit, Territory of Hawaii, praying for an injunction to prevent appellee Tay from sitting as a member of the board and to restrain the board from proceeding further with said hearings, alleging that Tay was not entitled to sit as a member of the board of health and that the above-quoted paragraph 10 of section 1029 was unconstitutional.

Appellees demurred to said bill. The Circuit Court sustained the contentions of appellant, and enjoined appellees from further hearing or considering said charges, but upon appeal to the Supreme Court of the Territory of Hawaii the judgment of the Circuit Court was reversed, the Supreme Court holding said section 1029 to be constitutional and appellee Tay entitled to sit as a member of said board of health. From their decree arises this appeal.

Two questions are presented to us here, the first of which concerns the right of appellee Tay to sit as a member of the board of health. Section 169 of the Revised Laws of Hawaii 1925 (originally passed in 1909) provides that: "Any other officer for the performance of whose duties in his absence or illness no other provision is made by law, may, with the approval of the governor, designate some other officer in his department, bureau or office to act in his temporary absence or illness. Such designation shall be in writing. * * * Such persons so designated shall, during the temporary absence or illness of the head of such office, have all the powers of the head of such office and shall be known as the acting * * * president, as the case may be. * * *"

Section 909 of the Revised Laws of Hawaii 1925, as amended by Act 34 of the Session Laws of 1925, provides that: "There shall be a board of health for the Territory of Hawaii consisting of seven members, four of whom shall be laymen, two physicians, and the attorney general, ex-officio. * * * The President of the board shall preside at the meetings of the board, and in case of his absence, any member of the board may be chosen to preside over the meetings of the board. * * *"

Prior to the commencement of the hearings before the board, appellee Tay, at that time sanitary engineer of the board and its employee, was designated by Dr. F. E. Trotter, president of the board, with the approval of the Governor, to be acting president of the board of health while Dr. Trotter was absent. Tay sat as a member of the board, presided as president, and the Supreme Court of the Territory of Hawaii has held that he did so legally.

In view of the fact that the statutory construction here is one of purely local law, and the Supreme Court of the territory has given its interpretation thereof, we see no reason for disturbing the judgment of the latter.

"Even if the statute is ambiguous, doubt as to its meaning should be resolved in favor of the construction placed upon it by the Supreme Court of the territory. Clason v. Matko, 223 U. S. 646, 32 S. Ct. 392, 56 L. Ed. 588; Ewa Plantation Co. v. Wilder (C. C. A.) 289 F. 664, 670, and cases there cited." U. S. Fidelity & Guaranty Co. v. Henry Waterhouse Trust Co., Ltd. (C. C. A.) 11 F.(2d) 497, 499.

"* * * The construction placed upon a local law * * * by the highest court of the Territory will not be disturbed by an appellate court. Kealoha v. Castle, 210 U. S. 149, 28 S. Ct. 684, 52 L. Ed. 998; Cotton v. Hawaii, 211 U. S. 162, 29 S. Ct. 85, 53 L. Ed. 131; Lewers & Cooke v. Atcherly, 222 U. S. 285, 32 S. Ct. 94, 56 L. Ed. 202; John Ii Estate v. Brown, 235 U. S. 342, 35 S. Ct. 106, 59 L. Ed. 259; Hawaii County v. Halawa Plantation, Limited (C. C. A.) 239 F. 836; Territory of Hawaii v. Hutchinson Sugar Plantation Co. (C. C. A.) 272 F. 856; Castle v. Castle (C. C. A.) 281 F. 609; Ewa Plantation Co. v. Wilder (C. C. A.) 289 F. 664; Halsey v. Ho Ah Keau (C. C. A.) 295 F. 636." Notley et al. v. McMillan (C. C. A.) 16 F.(2d) 273.

There is no question here of the right of the territory to enact laws regulating the licensing of physicians, nor are we called upon to consider the question of whether or not the crime of abortion is sufficient for the revocation of a license. Paragraph 1 of section 1029 as amended specifically provides for revocation of a physician's license for procuring an abortion, but appellees did not choose to base their revocation of Dr. Yoshizawa's license on that ground and we must consider only what is presented to us.

In making "gross carelessness" one of the grounds for revocation of a license it is clear that the statute did not go beyond the constitutional powers of the Legislature. The phrase is synonymous with "gross negligence," and the latter phrase has a well understood meaning built up in innumerable cases arising in all branches of the law, as well as in many cases involving the relations of physicians and their patients.

"`Gross negligence' is that entire want of care which would raise a presumption of conscious indifference to consequences; an entire want of care, or such a slight degree of care as to raise the presumption of entire disregard for, and indifference to, the safety and welfare of others; the want of even slight care or diligence. Foster v. State 102 Tex. Cr. R. 602 279 S. W. 270; L. & N. Ry. Co. v. Smith 135 Ky. 462 122 S. W. 806; Strong v. Western Union Telegraph Co. 18 Idaho, 389 109 P. 910 30 L. R. A. (N. S.) 409, Ann. Cas. 1912A, 55; Words and Phrases, Third Series, `Gross Negligence.'"

"In the absence of any statute the common law holds every physician and surgeon answerable for an injury to his patient resulting from want of the requisite knowledge and skill, or the omission to use reasonable care and diligence, or the failure to exercise his best judgment." 21 R. C. L. 26, p. 379.

In view of the established meaning of the term under the common law, as interpreted in a long line of cases, it cannot be successfully maintained that "gross carelessness" is too vague an expression, or that the charge filed against the defendant-appellant did not give him notice of the nature of the allegation which he was called upon to defend.

The term "gross carelessness" has an ascertainable meaning to the medical profession as well as to laymen. In the instant case the "gross carelessness" and "manifest incapacity" were alleged to have been shown in treating a patient "for suspected threatened abortion."

The phrase "manifest incapacity," however, stands in a different light from that just treated. The phrase is not defined by the common law; we have been unable to find a judicial interpretation of the phrase as an entity either in cases in general or in those dealing with physicians particularly; there is nothing in the instant statute that attempts to define the term. The phrase must, then, be interpreted.

In Re Hermance v. Supervisors of Ulster County, 71 N. Y. 481, it was said: Something manifest is "something which is apparent by an examination * * * needing no evidence to make it more clear. That which is open, palpable, and, I might add, incontrovertible." In Travelers' Insurance Co. v. Richmond (Tex. Com. App.) 291 S. W. 1085, 1087, it was said that "incapacity" used without qualifying words means "inefficiency," "incompetency," and "lack of adequate power." Manifest incapacity, then, in the sense of the statute means a lack of power to comprehend or to act, such lack being so obvious that no proof is necessary to establish it, other than proof of the act itself.

The board of health of Hawaii has seven members, of whom two are physicians. Their decision as to any particular case would be opinion, but opinion in the...