Upon the filing of additional briefs and after an oral argument, a rehearing has been granted in this cause, and the same is now upon the merits.
It is conceded that plaintiff below is entitled to a judgment in the sum of $125, for money expended in the purchase of the so-called "oil of radium." It is evident that the defendant below held himself out to be a physician. In his answer it is pleaded:
"Defendant admits that he is a physician, and that plaintiff came to him for treatment and that he diagnosed her case, and gave her proper treatment and directions, but says that plaintiff failed to follow his directions."
In Feige v. State, 11 Okla. Cr. 49, 142 P. 1044, it was held that one who is not licensed to practice medicine as provided by law can be prosecuted for publicly professing himself to be a physician and prescribing for the sick.
The evidence disclosed that the defendant below was not licensed to practice medicine. *Page 200 He admits having diagnosed plaintiff's case; he furnished a remedy; he guaranteed a cure, and while he collected $125 for the "harmless concoction" and not directly for the diagnosis and treatment, he did so collect it indirectly, and he thereby violated the provisions of section 8818, C. O. S. 1921, wherein it is provided:
"Every person shall be regarded as practicing medicine, * * * who shall for a fee or compensation treat disease * * * by any drugs, surgery, manual or mechanical treatment. * * *"
And it is further provided that any person who shall render such professional services without complying with the provisions of the act by being in possession of an unrevoked license to perform such practice shall be guilty of a misdemeanor.
The defendant below manually, by feeling of plaintiff's arm and examining her, diagnosed her disease and prescribed a treatment therefor. He is, therefore, liable in civil damages for the detriment suffered by reason of his having violated an express statute. Lafayette v. Bass, 122 Okla. 182,252 P. 1101; Hobbs v. Smith, 27 Okla. 830, 115 P. 347.
The difficulty occurs on the question as to the extent of his liability. Did the acts of the defendant cause the plaintiff to neglect proper medical attention until too late to obtain a cure? Was her disease curable at the time she secured the services of defendant?
Dr. Murdock, a reputable physician, testified (C.-M. 98) that in 1922 he examined the plaintiff, (C.-M. 104) that the examination occurred "two years ago"; (C.-M. 91) that the examination occurred about three years ago the first time, and that he ascertained that she suffered from cancer and that he recommended an operation, and that this was more than a year before plaintiff went to the defendant. On page 92 of the record the following' testimony appears:
"Q. State to the jury, Doctor, what you would say as to the possibility of a cure now as compared with — say, October, 1922.
"Mr. Biddison: Objected to as irrelevant and immaterial.
"The Court: Overruled.
"Mr. Biddison: Exception.
"A. At that lime I think the patient probably could have been cured, because we could define no large glands up under the arm and the mass itself was freely movable — could be removed. Of course, if it had spread further up into the liver, it would not have done any good, but it evidently had not done that, because she has lived this long and now it is an inoperable case; it has gone into the nodules of the skin. We don't know where they are — may be some in the liver, some in the kidney, some in the brain — she is helpless and an inoperable patient at the present time."
As to whether or not plaintiff could have been cured by the proper medical attention at the time she engaged the services of Harris, in addition to the testimony of Dr. Murdock, there is that of the plaintiff wherein she testified that when Dr. Harris examined her he said: "You lack two degrees of having cancer. There is no cancer without virus in the blood and you have not got that, but it will be cancer if it goes on."
Plaintiff spent the time from October to January taking defendant's treatment, and the evidence showed that she grew worse under his treatment.
The amount of damage is not certain. That was a question for the jury. The perplexing question is whether the acts of the defendant were the proximate cause of the detriment.
The rule against a recovery of uncertain damages generally has been directed against uncertainty as to cause rather than uncertainty as to the measure or extent. 17 C. J. 756.
The wrong complained of is the violation of an express statute in the pretended practice of medicine. The damage claimed is an injury resulting by reason of preventing Plaintiff from securing proper medical attention. The question is then, as to the breach of the statute, was such damage the natural, probable, and approximate result of the acts of defendant? The purpose of the statute was to prevent unskilled persons from preying upon an unsuspecting public and to eliminate the detriment that might be caused by malpractice. Hence, a person violating the statute does so with knowledge that one of its natural and probable consequences may be detriment caused both in pain and suffering and in neglect of proper medical attention.
In Hansen v. Kemmish (Iowa) 208 N.W. 277. 45 A. L. R. 498, it was held:
"A general statutory duty is ordinarily for the benefit of all persons who are likely to be exposed to injury from its nonobservance."
We are inclined to the belief that the opinion by the Commission is correct and *Page 201 that a proper conclusion is reached. The order granting a rehearing is therefore vacated and the petition for rehearing is hereby denied.
BRANSON, C. J., and PHELPS, LESTER, CLARK, and HEFNER, JJ., concur.
HARRISON and HUNT, J.J., absent, not participating.