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Nighohossian v. State ex rel. Patterson

Supreme Court of Arizona

February 9, 1953

STATE ex rel. PATTERSON, Secretary of State Board of Medical Examiners.

Garcia & Cordova, of Phoenix, for appellant.

Fred O. Wilson, Atty. Gen., and Phil J. Munch, Asst. Atty. Gen., for appellee.

UDALL, Justice.

The State of Arizona, at the relation of J. H. Patterson, Secretary of the State Board of Medical Examiners, brought an

Page 345

equitable action in Pinal County against defendant Ardashes Nighohossian, to enjoin and restrain him from practicing medicine without first having obtained a license so to do. After a hearing, judgment was entered granting the injunction prayed for, defendant's motion for a new trial was denied, and this appeal followed.

The plaintiff's amended complaint, which admittedly was brought under Chapter 42, Section 7, Laws of 1949 (now appearing as Sec. 67-1107, subsec. (e), A.C.A.1939, 1952 Perm.Supp.), after stating the jurisdictional facts, alleged in paragraph II:

'That on the first day of February, 1951, and on numerous days thereafter * * * defendant did engage in the [75 Ariz. 163] practice of medicine, he not having any license so to do, in violation of Section 67-1103 to 67-1109, A.C.A.1939, Cumulative Supplement of 1949.'

and in paragraph III:

'That defendant is threatening and intends to continue the aforesaid acts and plaintiff believes and has good cause to believe that defendant will, unless restrained, continue in the future to cause great and irreparable injury and harm to the public health, safety and morals.'

Paragraph III was added on leave given to amend after defendant presented a motion to dismiss for failure to state a claim. The trial court granted defendant's motion for a bill of particulars and the state furnished same in considerable detail. Defendant's answer admitted the jurisdictional facts but denied generally the foregoing allegations of the complaint. A jury was impaneled to render an advisory opinion as to the facts in this equitable matter, but eventually the court dismissed the jury as it determined that there were no issues of fact to submit to them.

The matter is submitted to us upon an agreed statement of facts, and incorporated therein is the testimony of the defendant who was called by the state as an adverse witness for cross-examination under the statute. From his testimony it appears that defendant is 43 years old, a shoemaker by trade, that he had lived in the Casa Grande area and had been treating patients there for two and one-half years preceding the trial. He grew up in an orphanage, and, except for the grade school-level education he received there, was self-educated, having received no medical training of any kind. In response to a question as to whether he was practicing medicine without a license, he stated: 'I am practicing medicine without a license. Yes. I told you why I do it.' The reason given was that it was for 'the benefit of mankind' and 'to help those who suffer'. Asked the average number of persons treated on an average day, defendant answered: 'I treated very many people. I can't count them. God knows that.' However, defendant denied having charged or received any compensation for his services but admitted on cross-examination that many persons, after receiving treatment, out of gratitude left money in a basket on the table. These contributions, defendant claims, were used to purchase the medicines and supplies used in his practice. Defendant issued no prescriptions but furnished medicine and bandages to his 'patients'.

By an avowal to the court defendant offered to prove, by the testimony of 150 persons, that his treatment was beneficial and that these 'patients' were physically improved. The court properly ruled that such evidence was immaterial and constituted no defense.

Dr. J. H. Patterson, secretary of the medical board, testified that the defendant was not a licensed physician in Arizona.

[75 Ariz. 164] The trial court took the view, although expressing some doubt as to its correctness, that compensation is not an element of practicing medicine as defined by the first part of our statute relating to diagnosis and treatment of disease, and excluded other proffered testimony showing that no compensation was received, as being wholly immaterial.

The court concluded, on the basis of these rulings and the proof and admission that defendant had no license to practice medicine, that there were no real issues of fact ...

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