Quarles v. Evans

7 La. Ann. 543

• Court: Supreme Court of Louisiana
• Decided: October 15, 1852
• Status: Published

Opinion

By the court:

Dotibab, J.

The plaintiff, a physician, sued the defendant as universal legatee of Mrs. Prolhro, deceased, for medical attentions and services rendered her during her last illness, and by an amended petition, claimed compensation for medicines furnished, and attentions bestowed in nursing the deceased during her last illness, which he says was protracted and incurable.

Defendant pleaded, that plaintiff was not duly licensed by a medical board of the State, in conformity to law, and could not recover for services rendered as a physician, in contravention of law.

There was a verdict and judgment for the plaintiff, and the defendant has appealed.

Our laws expressly prohibited every person from practising the profession of a physician, an apothecary, or that of midwifery, without a special license granted by the medical board, or a diploma from the University of Louisiana, and imposed a fine upon all persons so offending, for the benefit of the Charity Hospital. It is true, that subsequent to the services rendered by the plaintiff as a physician, and during the pendency of this suit, the Act of March 10th, 1852, has been passed, authorizing any person with a diploma from a Chartered Medical College in the United States, to practice medicine without license, .and to charge, demand and receive the usual fees for visits, &c., and repealing the penal laws not consistent therewith. From whence, it is argued by plaintiff’s counsel, that the repeal of penal statutes pending a litigation in which its penalties are invoked, taking from the courts the power of enforcing those penalties, confers on the plaintiff the right to recover for services that were illegally rendered before the repeal of the statutes. This we think by no means follows. The repeal of a penal statute prevents a penalty or fine from being enforced, but does not render a contract, made in defiance of law, valid, nor does it give any right of recovery on such a contract.

It is next argued, that the plaintiff comes within the unrepealed proviso of sec. 4th of the act of the I6th March, 1816, which exempts from penalties “a planter in the country, who, on the application of any of his sick neighbors, should procure them some alleviation, or administer them any kind of physic.” The same answer may be given to this, as to the former proposition. It only relieves him from the fine or penalty.

The plaintiff’s counsel further contends, that the plaintiff is entitled to recover under his amended petition, for medicines furnished and services rendered in nursing the deceased.

"We consider this a mere shift or device on the part of the plaintiff, with the hope that he might recover as a nurse, for services rendered illegally as a physician.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be reversed, and that there be judgment for the defendant, the plaintiff paying costs in both courts.