I respectfully dissent from the judgment of affirmance and here now enter the grounds of my dissent as follows:
First. A physician cannot recover for medical services rendered, unless he has complied with the statutes regulating his right to practice. Compliance therewith is a condition precedent to his right to practice, and a physician suing to recover for such service must allege and prove such compliance, and a failure to so allege in the petition subjects it to general demurrer. Swift v. Kelly, 63 Tex. Civ. App. 270, 133 S.W. 901. It is not a matter of defense but a necessary allegation which must be made and proven by the plaintiff. In the present case Drummond seeks to recover for and on behalf of Drs. Miller and Wright for medical services rendered by them, and recovered a judgment for their use and benefit. If it is necessary for a physician in suing to recover for medical services to allege and prove compliance with the statutes, then it should follow that one suing for and on behalf of a physician must make the same allegations. In this connection see Ry. v. Muth, 7 Tex. Civ. App. 443,27 S.W. 752, and Wooley v. Bell, 33 Tex. Civ. App. 399, 76 S.W. 797. For the reasons indicated the writer is of the opinion that those assignments complaining of that portion of the judgment recovered for the use and benefit of Drs. Miller and Wright should be sustained.
Second. Question No. 5 embodies more than one controverted issue in the same question, to wit: (1) Whether Dr. Miller treated Drummond for appellant; (2) whether McCabe was agent of the appellant; (3) whether the treatment was with the knowledge, consent, or acquiescence of McCabe. Vernon's Sayles' Ann.Civ.St. 1914, art. 1984a provides that special issues shall be submitted distinctly and separately and without being intermingled with each other so that each issue may be answered by the jury separately.
It is undisputed that Dr. Miller treated Drummond. This portion of the question should properly be answered in the affirmative, but it was an issue of fact whether the treatment was or was not for the association. Again: Was McCabe the agent of the association for the purpose of employing any doctor in El Paso? This was an issue of fact under the evidence. Again: Was the treatment with McCabe's knowledge, consent, or acquiescence? The answer was yes, but which was meant? Even if McCabe was fully authorized to employ physicians, a treatment with his knowledge only would be entirely different from a treatment with his acquiescence. The statute seems plain on this matter, and it has been uniformly held to constitute reversible error to submit a question which embodies more than one issue susceptible of different answers. Am. Nat. Ins. Co. v. Stevens (Tex.Civ.App.) 262 S.W. 833; T. N. O. R. Co. v. Turner (Tex.Civ.App.)199 S.W. 868; Radford Grocery Co. v. Jamison (Tex.Civ.App.) 221 S.W. 998; Lewis v. Bank (Tex.Civ.App.) 204 S.W. 888; Western Indemnity Co. v. MacKechnie (Tex.Civ.App.) 214 S.W. 456. *Page 338
For the reasons indicated, the writer is of the opinion the cause should be reversed and remanded.