ship and control. The theory on which this type of legislation is based is the central dogma of all those socialistic or communistic governments which make their appeal not to the well established principles of constitutional democratic government and the inviolable sacredness of individual and property rights, but on the false assumption that the state is supreme, and that there is no form of power which it may not acquire and exercise. Such a theory regards all constitutional guarantees of individual and property rights as an obstacle to its designs and believes that there is no private right which may not be abolished, and no private property which may not be confiscated. Such a theory is not progressive, but reactionary, for the warning lessons of all history teach us that the forces which produce national prosperity and security cease to operate when incentive to enterprise, thrift and industry are withdrawn by public action. Certainly all state socialism is utterly antagonistic to the theory of government declared by the framers of the Alabama constitution. Section 35 of that instrument declares "that the sole object and only legitimate end of government is to protect the citizens in the enjoyment of life, liberty and property and when the government assumes other functions, it is usurpation. and oppression."

The constitutionality of the proposed legislation is sought to be sustained on the claim that it is a proper exercise of the police power of the state. But as declared by Black in his monumental work on constitutional law, "the police power of a state to regulate business does not include the power to engage in carrying on that business." Stripped then of all subterfuge, the commission's bill means that the state in effect will engage in carrying on the business of mining and selling coal, by autocratically taking over the complete control and management of all privately owned coal mines in Alabama.

The commission that it creates, fixes the wages of all labor engaged in the business, but any laborer that induces another to quit his employment can be punished by fine not exceeding $1,000 and by hard. labor for the county not exceeding one year. The commission has plenary power to determine the price for which the mine owners' product may be sold and to whom and where it can be sold. All the rules and regulations it adopts have the force and authority of law. Over the heads of both employer and employe is constantly suspended the sword of punishment. Under this law the employe, if dissatisfied, can quit, but he dare not persuade any other employe to quit without becoming a criminal. The owner of the coal mine, acquired by his foresight, industry and sacrifice, becomes a mere tenant of the state, but without the power of authority which the ordinary tenant possesses. The employe is converted into a hireling who must accept such wage as is offered, or seek other fields of employment. If this socialistic remedy for our industrial ills is to be adopted as to coal on the specious pretext that it is private property affected by a public use, then it cannot be denied that street railroads, telegraphs, telephones, ice factories, water companies, cotton mills, corn and flour mills, cotton gins, lumber mills and innumerable other industries are all affected with a public use. Why then, it may be asked, should not the state appoint a commissioner to take over and operate all these other industries as has been done in soviet Russia?

The proposed legislation is practically an adoption of an act creating a court of industrial relations, chapter 29, laws of

Kansas, 1920. Under that act, all the employments in Kansas, held to be affected with the public use, are thereby subjected to state supervision and are specified as follows:

1. The manufacture and preparation of food products, whereby substances are

being converted into a condition to be used as food.

2. The manufacture of clothing and the matter of wearing apparel.

3. The mining or production of any substance or material in common use as fuel.

4. The jurisdiction of all food products, articles entering into wearing apparel or fuel, from the place where it is produced to the place of manufacture or consumption.

5. And all public utilities, and any firm, person or corporation within the capacity of owner, officer or worker, is subject to the provision of the act.

Why, then, did our coal commission, limit its proposed legislation to coal? Why did they not extend it, so as to embrace all the subjects specified in the Kansas law? Why did they not at once, as Kansas, adopt state socialism as the established policy of this state. It must be remembered that over a quarter of a century ago, populism found in Kansas a congenial home and it has always been the breeding place of visionary theories, quack remedies and experiments for every governmental and industrial ill.

As shown by the report of the commission the real basis for the proposed legislation is profiteering, "the wide stretch between the mouth of the mine and the cellar of the consumer," but the commission certainly cannot claim that profiteering is confined to coal alone. There is profiteering in food, in clothing, in gas and electricity, in water and in ice, in lumber and wood and in all other industries affected with a public use. If state control solves the problem of profiteering in coal, it should solve it as to all other articles which swell the high cost of living.

In Germany where state socialism is an established policy, they have never undertaken to take over and operate coal mines. As the Saturday Evening Post

states, early in 1919 the German government under the control of social democrats appointed a committee on socialization with special reference to railways and coal mines. As a result of an exhaustive investigation, says the Post, the committee reported adversely to 'socialization of the mines on the ground that a maximum output of coal was a prime consideration, for the country, and for this private operation gave the best guarantee. Yet while the socialists in Germany are opposing state control of the coal industry, we in Alabama are seriously considering embarking the state upon an experiment which has been dis carded by governments where socialism is the prevailing policy.

The coal commission admits that the real basis for the Alabama strike, the tur moil and bloodshed in this district was the refusal of the coal operators to recognize the labor unions. That is unquestionably true, but to end a temporary strike are we justified in adopting the doubtful and dangerous experiment of state socialism? With the enforcement of law and order by the supreme power of the state now prevailing, industrial peace will come. It may not come over night, but it will come when all the natural forces of the law of supply and demand and a just public opinion can be come operative. It will come "in the growing light of higher ideals and better understood principles." The healing of our industrial conflicts will not be found in either socialism or autocracy, but rather in that still small voice that speaks to our consciences and Our hearts, prompting us to a wider and wiser humanity. Present conditions may be bad. but they would be infinitely worse, if as now proposed, we make a bonfire of our civilization and undertake that socialization of our industries, that confiscation of private property, that overthrow of constitutional democracy and that establishment of class legislation which has al

It is not my intent to discuss extensively this subject but rather to call attention to some of the more interesting and important points in connection therewith.

Just what constitutes malpractice is difficult to include in a definition, as the duties of the physician to the community in which he lives differ according to the character of the community, also as to his own pretensions and abilities, as it goes without saying that the community of a larger city, where wealth is plentiful is more attractive to physicians of extra ability than the backwoods where poverty is ever present. The Community of wealth expects and demands that its medical and surgical force shall be of the best that money can buy, while the sparsely settled communities are satisfied. with what they can get. Then, too, the large communities afford advantages of observation and experience whereby the physicians of such communities are constantly and continuously improving both in knowledge and technic.

It generally follows, then, that those engaged in the practice of medicine or surgery in cities are as a rule better qualified to practice, hence they are in duty bound to use a higher degree of knowledge than their country brethren. Thus in the nature of things the obligation of the physician to his patient is not the same for all physicians nor to all patients.

The physician or surgeon must possess that reasonable degree of learning, skill and

This is a revision of a paper read before the 28th Annual Session of the Arizona State Medical Association, June 2, 1919, by Win Wylie, M.D., LL.B., F. A. C. S., Phoenix, Ariz.

experience which ordinarily is possessed by others of his profession, and he must exercise reasonable and ordinary care and diligence in the exertion of his skill and the application of his knowledge, and exert ordinary judgment as to the treatment of the case intrusted to him. In short, a physician or surgeon is bound to bestow such reasonable and ordinary care, skill and diligence as physicians and surgeons in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases. It is not necessary that he use the utmost degree of care and skill. The Supreme Court of Iowa has held that an instruction to the jury which holds a physician up to the standard of a thoroughly. educated or well educated physician is erroneous.3 And the Kentucky Supreme Court holds that a physician need not use his best skill and ability, for no one can be at his best, and his conduct should be subjected to a test by a reasonable external standard. That is, he must have and use as much education as the average physician and surgeon, of similar locations and he must exercise that degree of diligence that is ordinarily used by such physicians.

But a physician and surgeon may, by his own act, increase the degree of skill which the patient may demand and the law hold him bound to possess and use. Thus a physician or surgeon who holds himself before the public as a specialist in some one or more branches of medicine or surgery, must bring to the discharge of his duty, not the knowledge and care ordinarily used by the ordinary physician, but that knowledge and skill which is ordinarily used by specialists.

It is

age skill of general practitioners."5 immaterial whether, in fact, he is a specialist in his line or not, if he holds himself out as such, he must bring to his patients that degree of skill which a specialist assumes to possess. One who does not pretend to be a physician, yet treats the sick merely as an act of kindness and without expectation of reward incurs no liability, although his treatment of the case is improper.'

When a physician or surgeon is being tried on a complaint of malpractice, he has a right to have his diagnosis and treatment tested by the rules and usages of the school to which he belongs. That is, a physician claiming to practice regular medicine could not have his treatment judged upon evidence given by a physician practicing homeopathy, or any other pathy or science. Nor could the treatment of a Christian Science practitioner be judged by evidence of proper treatment as recognized by regular medicine or any other school of medicine. A Christian Scientist in practicing the art of healing should exercise only that degree of care and skill possessed and exercised by the ordinary Christian Scientist in practicing the art of healing. In the case of Spead v. Tomlinson' it appeared that the defendant treated the plaintiff according to Christian Science methods for the disease of appendicitis. The treatment did not benefit the disease. The plaintiff then called. in a surgeon and was operated on, but the delay had caused damage for which this action was brought. The Court said:

"It has long been recognized as the law of this state that 'a person who offers his services to the community generally, or to any individual, for employment in any professional capacity as a person of skill, contracts with his employer that he possesses that reasonable degree of learning, skill and experience which is ordinarily possessed by the professors of the same art or science,

and which is ordinarily regarded by the community, and by those conversant with that employment, as necessary and sufficient to qualify him to engage in such business.' *** The plaintiff knew that she was not to be treated according to the methods of the regular school. Had she been an infant, non compos, or had never assented to Christian Science treatment, then the question whether the practice of Christian Science, as applied to the treatment for appendicitis, is so contrary to common sense and reason that it would be negligent for such a practitioner to undertake to treat the disease, might be open to consideration by a jury. But being a person of mature years, and having sought such treatment, she cannot now complain that the method itself was improper. What the parties mutually expected was that, the defendant would treat the plaintiff according to Christian Science methods, and it necessarily follows that the defendant in the treatment of the plaintiff, is to be judged by the standard of care, skill and knowledge of the ordinary Christian Scientist, in so far as he confined himself to those methods."

The foregoing discloses that the Christian Scientist is in a class by himself. All other schools of medicine, surgery or osteopathy have some things in common, as for instance the anatomy and physiology of the human body. It would seem that the Christian Scientist would be in the same class as the clairvoyant, magnetic healer; mental scientist, etc., but such is not the case, for in the case of all of these different practitioner's errors resulting in injury, the practitioner is held for the damage suffered, the courts holding that it is against public policy to do otherwise.10

It is not enough that the medical man shall be a graduate of a regular and recognized medical school in good standing. nor that in practice he use those methods. which were taught in that school, for the treatment is measured with the knowledge and treatment of the present day and not that which may have existed in the past. On the other hand, the phy

11

sician or surgeon must not get ahead of the profession; he must conform to the mode of treatment established by his school of medicine and if he does other. wise, he will be held for whatever dam

age results.12 New methods may be used if they are approved,13 but experiments must not be tried on patients and if they | are the financial risk is assumed by the physician and not by the patient.1*

A surgeon may be responsible even where he has exercised every care and the greatest of skill; for instance, where he assumes the responsibility of removing organs or parts of the body of his patient without the consent of the patient or someone authorized to give such consent; such act is a technical battery.15 There are numerous cases of this kind. For instance, the case of Mohr v. Williams,10 where a patient consented to an operation on her right ear, but during the operation and while the patient was anaesthetized, it was found that she had still worse trouble with her left ear, which was then operated. It was held that a trespass had been committed and the patient was entitled to remuneration for whatever damage she suffered.1 And in an Oklahoma case the surgeon operated upon a foot, promising not to remove any bone, but found the bone so diseased that it required removal. He removed a portion. This was a trespass for which the surgeon was liable.18

There is an exceedingly interesting and important question as to how far the physician and surgeon is responsible for the negligence of the nurse. It can be stated in a very few words. Where the act done or left undone is one which the surgeon should have done himself or made sure it

(12) 30 Wash. 349.

(13) 183 Mich. 252. (14)

37 L. R. A. Note 836. (15) 39 Okla. 572. (16) 95 Minn. 261.

(17) 95 Minn. 261. (18) 39 Okla. 572.

was done by another, he is financially responsible. On the other hand, if the act performed or left unperformed was something which it was the duty of the nurse to do, or was the duty of the hospital or other institution to see that it was done, the physician would not be liable. Perhaps the most frequent negligence wherein the surgeon is liable for the act of the nurse is the leaving of a sponge or instrument in the abdomen, and it is immaterial whether the nurse is his employe or not. It is immaterial whether it be the result of failure to count correctly or jumping at the conclusion that all are removed without counting. The duty to remove instruments and sponges from the wound of an operated patient is peculiarly, a duty which the surgeon owes to his patient, and he is legally held where he delegates this duty to another and it is not properly performed.1o It is immaterial that other surgeons testify that it is a common accident.20

Phoenix, Ariz.

(19) 177 Fed. 79. (20) 133 Ky. 459.

WIN WYLIE.

ATTORNEY AND CLIENT-EXACTING PAYMENT BEFORE DUE.

CRAIG V. FRAUENTHAL et al.

Supreme Court of Arkansas. Sept. 27, 1920.

224 S. W. 434.

Where the treasurer of a county gave attorneys a duebill for $250 for their fee in foreclosure proceedings under a mortgage given by bank officers to secure the indebtedness due by the bank to the county, the treasurer was liable thereon, though the attorneys had agreed to act in the foreclosure proceedings free of cost to him, and though they had threatened to block the settlement unless the duebill was given, which was not "duress."

Appellees sued appellant upon a duebill, which reads as follows:

"De Valls Bluff, Ark., Nov. 27, 1918. "Due Samuel Frauenthal and J. G. Thweatt $250 for legal services rendered in the fore