State ex inf. SAGER v. Lewin

106 S.W. 581, 128 Mo. App. 149, 1907 Mo. App. LEXIS 561

Opinion

BLAND, P. J.

-The following taken from appellant’s statement is a correct statement of the main facts in the case:

“This is a proceeding quo warranto filed ex officio by the circuit attorney of the city of St. Louis, Missouri, on the twenty-fifth day of April, 1906, to oust the respondents, W. A. Lewin, A. Levin and M. M. Ritter, and all others acting conjointly with them, from the exercise of the privileges of an incorporation under the name of the Lewin Hernia Cure Company.

“The information charges that under said name the respondents 'have claimed and do still claim the right and privilege to furnish treatment for hernia and medical and surgical treatment for all other diseases, accidents and deformities and as such pretended corporation have exercised and. do now exercise the right and privilege of engaging in the practice of medicine and surgery, treating hernia and all other diseases, accidents and deformities in the city of St. Louis, Missouri, without any legal warrant, franchise, charter or grant.’

“In the return to show cause, respondents disclaim that the Lewin Hernia Cure Company has claimed or does claim the right or privilege of engaging in the practice of medicine, but that said company claims the right of engaging in the business of contracting for the prac tice of medicine. It is alleged therein that the respondents were duly incorporated under the laws of the State of Missouri, and particularly, article 9, of chapter 12, of the Revised Statutes of 1899, in due form as therein prescribed, and that the charter specifically empowers the said corporation in the following:

“ 'The company is formed for the purpose of furnishing treatment for hernia and medical and surgical treatment for all other diseases, accidents and deformities.’

“Other allegations appear in the return to the effect that W. A. Lewin, a duly licensed physician, having discovered a formula for the treatment of hernia, organized the Lewin Hernia Cure Company, for the purpose of perpetuating same and that he entered into a contract with the company to serve as manager thereof 'and during that time to personally treat all persons who employed said company to furnish treatment for the cure of hernia,’ etc.

“Thereupon appellant filed a reply to said return, admitting the execution of the articles of incorporation, their recordation, all in due form, but denying each and every other allegation in said respondents’ return contained. To this the respondents filed a motion for judgment on the pleadings. During the trial of the cause, counsel for respondents specifically conceded that it would have been an illegal grant of. corporate privileges had the charter authorized respondents to engage in the practice of medicine, but admitting this proposition, they urged that under the terms of the charter the Lewin Hernia Cure Company in having been granted the right to 'furnish treatment’ for diseases was given the privilege not of engaging in the practice of medicine but in the business of contracting for the practice of medicine in providing medical treatment, through licensed physicians in its employ, to those who might apply to the company.”

The court sustained the motion for judgment on the pleadings and rendered judgment for respondents, from which the State appealed.

It is conceded by respondents, that a corporation cannot be organized to practice medicine in this State. Appellant’s contention is that the corporation is indirectly practicing medicine, as shown by the return, in this, that Dr. W. A. Lewin, who owns ninety-eight of the one hundred shares of the capital stock of the corporation, is its superintendent and is employed by it to practice medicine. The power granted by the charter is that “of furnishing treatment for hernia and medical and surgical treatment for all other diseases, accidents and deformities.” It is stated in the return that Dr. W. A. Lewin “had discovered a method of curing hernia quickly and permanently without the necessity of using the knife or other surgical instruments therefor, and had also discovered a certain liquid or fluid to be injected into the affected parts for treating and curing the same,” and that one of the purposes of the incorporators was to perpetuate these secrets in the corporation. The return shows that Dr. W. A. Lewin is the general manager of the corporation and is employed by it as physician to treat patients who may contract with said corporation for treatment of hernia or other diseases. Appellant contends that power granted the corporation to furnish medical treatment, means that it may practice medicine through its human agencies. Respondents’ contention is that the power granted the corporation is only contractual, that is, it is only authorized to furnish regularly licensed physicians to treat parties who may apply for treatment. These contentions can only be settled by a proper judicial construction of the term “furnish,” as used in the charter of the corporation. Webster defines the term to mean, “To supply with anything necessary, useful or appropriate; to provide, to equip; to fit out, or fit up. ... To offer for use; to provide (something) ; to give (something), as, to furnish food to the hungry,” etc. March, Thesaurus Dictionary, p. 134, says: “The term furnish is classified with the word givfe rather than with get.” If the word “furnish,” as used in respondent’s charter means to give, then the charter conferred the power on.the corporation to practice medicine, and is void; and in this connection it is contended by appellant, that the powers granted the corporation should be most strictly construed against it. This is the general rule in construing grants by the state to private corporations. There is, however, another rule of construction that should play a part in this connection, that is, that where a grant from the state or from a private person is susceptible of two constructions, one of which would render the grant void and the other make it legal and enforcible, the latter should be adopted, for neither the state nor a private person should, in the making of contracts, be convicted of doing a void and useless thing; and we think the word “Furnish,” as used in the charter, should be construed to inéan supply. The corporation is not restrained by its charter from entering into contracts with persons to supply medical treatment, nor from entering into contracts with physicians to render medical and surgical services and has, in this respect, the same right to contract as a private individual. [King v. Phoenix Ins. Co., 195 Mo. l. c. 304, 92 S. W. 892, and cases cited.] In all the larger cities, and connected with most of the medical colleges in the country, hospitals are maintained by private corporations, incorporated for the purpose of furnishing medical and surgical treatment to the sick and wounded. These corporations do not practice medicine but they receive patients and employ physicians and surgeons to give them treatment. No one has ever charged that these corporations were practicing medicine. The respondents are chartered to do, in the main, what these hospitals are doing every day, that is, contracting with persons for medical treatment and contracting with physicians to furnish treatment, and the fact that Dr. W. A. Lewin is the principal stockholder and the manager of respondent corporation, and is employed by it to furnish medical and' surgical treatment to patients who may contract with it for such treatment does not alter the legal status of the corporation or show it has violated the terms of its charter. The corporation expressly disclaims the right to practice medicine, and we conclude it has a right to do what the return states it is doing, and affirm the judgment.

All concur.