tion of the medical examiners shall be in all respects like ordinary civil actions, such cases are not criminal in nature.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11(3).]

3. STATUTES 47-PHYSICIANS AND SURGEONS-UNCERTAINTY - REVOCATION OF LI

CENSE.

In a proceeding for revocation of a physician's license for illegal advertising under Rem. & Bal. Code, § 83972, the state need not show actual harm already resulted from the adVertising.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig.

Holcomb, J., dissenting.
Department 2.

Court, King County; Walter M. French,
Appeal from Superior
Judge.

Rem. & Bal. Code, §§ 8397, 83972, pro-11(2).] viding for revocation of physician's license on showing of advertising tending to deceive or impose is not void for uncertainty in failing specifically to define what words in advertising are improper. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. 47.] Proceedings before the State Board of Medical Examiners for the revocation of the 4. PHYSICIANS AND SURGEONS 11(3)-REV-license of J. Eugene Jordan. From a judgOCATION OF LICENSE-EVIDENCE-ADMISSI- ment reversing its order revoking the li

BILITY.

In proceeding for revocation of physician's cense, the Board appeals. Reversed, with license under Rem. & Bal. Code, § 83972, for instructions. illegal advertising, the inquiry and proof may properly include the competency of the physician in order to show his intent from all the facts and circumstances.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11(3).]

5. PHYSICIANS AND SURGEONS 11(2)-REVOCATION OF LICENSE-ILLEGAL ADVERTISING -WHAT CONSTITUTES.

Rem. & Bal. Code, § 83972, providing for revocation of physicians' licenses, does not prohibit mere unethical conduct, but is directed at wrongful conduct.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11(2).J

W. V. Tanner, Atty. Gen., and Howard Waterman, Asst. Atty. Gen., for appellant. Walattle, for respondent. ter S. Fulton and Dorr & Hadley, all of Se

BAUSMAN, J. The Medical Board appeals from the superior court's reversal of its order revoking the license of Jordan. The statutory provisions involved are section 8397 et seq., Rem. & Bal. Code, and more particularly that section which, defining unprofessional conduct, includes:

"Third. All advertising of medical business which is intended or has a tendency to deceive the public or impose upon credulous or ignorant 6. PHYSICIANS AND SURGEONS 11(3)-REV- persons, and so be harmful or injurious to public morals or safety." Section 83972.

OCATION OF LICENSE-ILLEGAL ADVERTISING
-EVIDENCE-SUFFICIENCY.

Evidence held to show that a physician was
guilty of wrongful advertising under Rem. &
Bal. Code, 83972, and that he was not ex-
cusable on the ground of good faith.
[Ed. Note.-For other cases, see Physicians
and Surgeons, Cent. Dig. § 15; Dec. Dig.
11(83).]

7. PHYSICIANS AND SURGEONS 11(2)-REVOCATION OF LICENSE-ILLEGAL ADVERTISING -EVIDENCE-SUFFICIENCY MORAL TURPI

TUDE.

To prove the offense of wrongful advertising denounced by Rem. & Bal. Code, § 83972, moral turpitude need not be shown.

[Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11(2).J

8. PHYSICIANS AND SURGEONS

AL CONDUCT.

10-IMMOR

It is not merely unethical, but immoral, to get money from the poor, the simple, or the ignorant by advertising the cure of incurable dis

eases.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 14; Dec. Dig. 10.]

9. PHYSICIANS AND SURGEONS 11(2)-REVOCATION OF LICENSE-ADVERTISING CURES"INCURABLE."

The courts will call that incurable which the present stage of knowledge so pronounces. [Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. § 15; Dec. Dig. 11(2).]

The complaint alleged as follows: of medicine and surgery under the laws of the "That the defendant is a licensed practitioner state of Washington; that he advertised his medical business in the Seattle Daily Times of Wednesday, October 1, 1913, and in sundry other editions of said Seattle Daily Times during the latter part of 1913 and the year 1914; that such advertising of his medical business was such as intended or has a tendency to deceive the public or impose upon credulous or ignorant persons and so be harmful or injurious to public morals or safety, in which respect defendant has been guilty of unprofessional conduct."

The lower court confined the board to the numerous questions to Jordan as its witness, named advertisement of October, excluded its intended to bring out his ignorance of dissame time permitted Jordan to show alleged eases that he advertised to cure, and at the specific cures. The advertisement which the court did admit is as follows:

"Bright's Disease Cured. "Another Case of the So-Called Incurable Disease Completely Cured-This Did Not Happen in Central Africa, but Right Here in Seattle-Do You Know of Any Other Physician Who Can Do It?

"September 24, 1913. "I was taken down with acute Bright's Disease last February and was not expected to rely move in bed. My condition became so desI became so dropsical that I could hardperate that the doctors in attendance held out no hope. Dr. J. Eugene Jordan was suggested

cover.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

as a last resort and as I had nothing to lose and I board voluntarily furnished a list of all the everything to gain, I started to use his Glandupublications. lar Remedies. I began to mend at once and in three months not a particle of albumen could be found where before it was loaded with it. I gained back the thirteen pounds that I had lost and my kidneys are as good as they were before. "[Signed] Ad Goings.

[2] The case was not criminal by its nature. The Legislature had an undoubted right to classify this proceeding, and it did so in section 8399, by providing that appeals from the board should stand for trial “in all respects as ordinary civil actions, and like proceedings be had thereon." In Reetz V. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563, a statute was upheld which, even as to previously licensed practitioners, required examination or approval by the board, the defendant vainly contending that this

"8016 Twelfth Avenue Northwest. "The above testimonial, like the many others which have appeared in this journal, demonstrate the thoroughness and permanency of Dr. J. Eugene Jordan's cures of Tuberculosis, Asthma, Anæmia, Blindness, Bright's Disease, Ulceration of the Bones, Chronic Catarrh, Chronic Inflammation of the Bladder, Deafness from Paralysis of the Auditory Nerves, Diabetes, Prolapsus Uteri, Dropsy, Chronic Dyspepsia, Epilepsy, Epithelioma (skin cancers), Chronic Ery- retroactive proceeding of forfeiture was quasi sipelas, Chronic Gastralgia, Hard Lumps in criminal. It was also held that even the Breast, Heart Disease (including Heart Leak-right of trial guaranteed in "due process of age), Hip Diseases, Infantile Paralysis, Insanity, law" does not involve the right of a judicial Jaundice, Rheumatism, Meningitis, Chronic

Neuralgia, Paralysis, Locomotor Ataxia, Sci-trial. See, also, Hawker v. New York, 170 atica, Senile Gangrene, Spinal Curvature, Stra- U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002. bismus, St. Vitus' Dance, Ulceration of Stomach In State v. Snook, 78 Wash. 671, 139 Pac. or Bowels and most other so-called incurable diseases. 764, we held disbarment proceedings to be noncriminal.

"Dr. J. Eugene Jordan is a fully accredited physician under the laws of the state of Washington and is an ex professor of Chemistry and Toxicology of the Hahnemann College and Hospital of Chicago, Ill. He has practiced in Seattle continuously for the past 28 years. There being a number of Doctors Jordan in

Seattle, it is well to bear in mind the full name and address of Doctor J. Eugene Jordan, 6191⁄2 First Avenue, Seattle. Office hours, 9 a. m. to 8 p. m.; Sundays, from 2 p. m. to 6 p. m. Consultation free. Watch each Sunday Times for remarkable cures."

The respondent to support the judgment argues, first, that the complaint is insufficient; second, that the statute is invalid; third, that the testimony by defendant's patients and himself showed that he had reasons for belief in his advertisements from a fair percentage of cures, and that no patient is shown to have been harmed. The appellant board combats all these positions, and claims at least a new trial because the court should have admitted the other advertisements as well as the rejected questions.

The

While we deem the lower court wrong in both the last-named particulars, we see no occasion for a mere new trial, because upon the record as it stands the case can be decided now. We will discuss it in the order of the contentions made by respondent. [1] 1. This complaint was sufficient. statute has wisely allowed defendant a first hearing before brothers in his own science. To say that such persons, unacquainted with the law, must conduct these examinations or invite them with legal nicety will not do. We so held even on misdemeanor for practicing without a license. State v. Greiner, 63 Wash. 46, 114 Pac. 897. The courts uphold the less technical practice. Meffert v. Packer, 66 Kan. 710, 72 Pac. 247, 1 L. R. A. (N. S.) 811; Munk v. Frink, 81 Neb. 631, 116 N. W. 525, 17 L. R. A. (N. S.) 439.

Defendant's rights were easily protected either by demand for particulars or by motion to make more definite. Moreover, eleven

[3] 2. As to the constitutionality of these statutes, this court has frequently affirmed it from State v. Carey, 4 Wash. 424, 30 Pac. 729, down to State v. Pratt, 80 Wash. 96, 141 Pac. 318. Nearly every question has been met, including that of class legislation and of delegation of legislative authority.

Respondent presses, though, an uncertainty in the third subdivision of the section now

involved. It furnishes, he says, no standard by which either board or court can determine what advertisement offends, in support of which he cites Matthews v. Murphy, 63 S. W. 785, 23 Ky. Law Rep. 750, 54 L. R. A. 415; Hewitt v. Board of Medical Examiners, 148 Cal. 590, 84 Pac. 39, 3 L. R. A. (N. S.) 896, 113 Am. St. Rep. 315, 7 Ann. Cas. 750; Czarra v. Medical Board, 25 App. D. C. 443. None of these cases, however, cover the present situation. The statutes were clearly less particular than ours. That of Kentucky provided that the board might revoke the practitioner's certificate if he were "guilty of grossly unprofessional conduct of a character likely to deceive or defraud the public." It is plain that here no acts whatever were specified and any offense from advertisement was debatable. Our own statute, far more specific, enumerates seven things that constitute unprofessional conduct. The one relating to advertisement cannot well be made more specific. To describe in express terms a faulty advertisement is practically to instruct the defendant how to evade it, and as to the limitless variations of language, symbols, and verbal or pictorial allurements, no human ingenuity could possibly anticipate and forestall them. The Supreme Court of Kentucky, in Forman v. Board, 157 Ky. 123, 162 S. W. 796, has, moreover, clearly relaxed the severity of the earlier decision.

As to the California or Hewitt Case the court did find insufficient a clause against

"All advertising of medical business in which grossly improbable statements are made."

But it is curious that that court in the decision did not drive the Legislature to an express form. On the contrary, it held that general language would be sufficient, and suggested the very language since incorporated in our statute now attacked as insufficient. Apparently this suggestion of the California court was taken over by those who prepared our law.

The Czarra Case attacked a statute which provided only against "unprofessional or dishonorable conduct."

ing common sense based upon a general view of the arts and sciences, we see upon its face every mark of the voluble humbug or unscrupulous quack. Just when a medical advertisement may be offensive to this statute, we do not attempt to say, but either this advertisement offends the statute or there is none that can offend it. This practitioner spreads his pretensions over all branches of this vast science, through dieases of the kidneys, of the ears, of children, of the nerves, and of the heart. Blindness comes within his power, insanity, cancer. A cure of any one of the maladies proved to be incurable would have made this man famous. Cures in several, as advertised by him, would have raised him to a prodigy. Yet not one cure is proved by any testimony that among men of science would be credited for a moment. When we consider the zeal with which physicians adopt new remedies and both follow and proclaim the discoveries of their brothers, and the elevation that comes in this way to modest and patient investigators, defendant's attributing envy to the state board is but an aggravation of his bad conduct.

[4] To us there seems a happy reply on any basis to arguments of this sort. Under our statute the defendant is not tried on the advertisement alone but on the advertisement and his capacity, qualifications, or actions to fulfill it. The appeal to the superior court secures a trial de novo. In such trial a proper line of proof is not only the advertisement, but the competence of the defendant to do what he advertises he can do. The issue then becomes like that in getting money by false pretenses, which no Legislature has ever been required to define. The crime is determined not from the representations alone, but from all the actions and circumstances in which intent can be gath-capable counsel felt obliged to suggest to

ered.

[5] Our law has not prevented a practitioner from advertising cures or inviting the public to his healing, but only advertisements intended to beguile. It attacks not mere unethical conduct, but wrongful conduct. If from the testimony it appears that he either does not cure the diseases, never has cured them, cannot cure them, or does not know what they are, the law has then a right to say it is advertising to deceive. This fully explains why the California court, dissatisfied with "grossly improbable statements," which would have made a mere academical or legal debate, was satisfied to suggest the present form for a different is

sue.

[6] 3. Finally respondent contends that upon the whole evidence we must uphold the good faith of the advertiser. From that evidence we conclude the very contrary. We think, without considering also the rejected advertisements, which were equally brazen with the one admitted, that nothing can be more clear than that we have here the language of a charlatan. It was clearly proved that of the diseases which he recklessly advertised himself as curing, the following are wholly incurable: Bright's disease, deafness from paralysis of the auditory nerve, infantile paralysis, locomotor ataxia, spinal curvature, and senile gangrene, while the others are incurable in the great majority of cases. These things were established by ten practitioners in the defendant's science. He, for his part, called not one to sustain him in anything.

In spite of protection from the lower court in the excluded questions, his examination was so humiliating that even his adroit and

him at times the propriety of answering questions obviously fair. His explanation of his own theories is such that even a layman cannot peruse it without a smile. His testimony is one long flux of garrulity and evasion.

Nor are we impressed by some 20 witnesses testifying to his cures. Many of these had been under treatment by other doctors, none of whom were called by the defendant, who must have known beforehand that they would be named. Nearly all the patients were uncertain what their ailments really had been. Practically no proof was given in this respect, except that the defendant had told them such were their maladies. He for his part gave no diagnoses from which scientific men could review them. Several plainly did not have the maladies they thought they had.

[7-9] One additional question. It is said that granting the statute to be constitutional, still the lower court was right in ruling an advertisement not bad, unless there is in it moral turpitude, and that while this is not specified in the advertising clause of the statute, it should be read into it because the six other clauses aim at immoral things. Counsel cites Forman v. Board, supra. This clause is not exposed to that rule. Besides this third ground the section names abortions, betraying of professional secrets, the giving of medicines for certain purposes to women, conviction involving moral turpitude, habitual intemperance, and the personification of another practitioner's name. spect to advertising it excludes the idea of Taking the advertisement itself and apply-association with the other clause for it says

In re

[Ed. Note.-For other cases, see Trespass, Cent. Dig. § 126; Dec. Dig. 46(3).] 2. CRIMINAL LAW 568-EVIDENCE-IN

what purport in an advertisement shall be voluntary and an element of willfulness or malbad. It forbids any advertisement intended ice is combined therewith, it was enacted for or tending to deceive. The Forman Case had a just double purpose, to punish a voluntary offender and to provide, by trebling the actual before it a statute with nothing in it re- present damage, a rough measure of compensaspecting advertising at all, and the advertis- tion for future damages not generally ascertaining offense had to be attacked under the gen- able; and the action is not a criminal or penal eral "other grossly unprofessional or dishon-action, but merely a civil action for tortious damages, with added penal damages. orable conduct of a character likely to deceive or defraud the public." Thus there was not even an attempt to define advertising. However, we should not hesitate to hold this section good under the rule of association too. It is not merely unethical, but immoral, to get money from the poor, the simple, or the ignorant, by advertising the cure of what is incurable, and the courts will call that incurable which the present stage of knowledge so pronounces. Freeman v. Board, 154 Pac. 56.

[10] Nor was it incumbent on the state to show whether actual harm had yet come to any one through this practitioner. That is not material. The statute aims to protect the purse as well as the health from quacks, and the other burden, if cast on the board, would, through the many confusing and contributing influences on the health of patients, make proof exceptionally difficult.

The decision of the lower court is reversed, with instructions to enter a judgment affirming in the superior court the order of the board appealed from.

MORRIS, C. J., and MAIN, J., concur.

TENT.

by direct testimony, but may be inferred from
In criminal cases intent need not be proven
the act itself and from the circumstances sur-
rounding and attendant upon its commission.
[Ed. Note.-For other cases, see Criminal
Law, Cent. Dig. § 1271; Dec. Dig. 568.]

3. TRESPASS 46(1)—EVIDENCE-SUFFICIEN-
CY-COMMISSION OF ACT.

In trespass for cutting trees, evidence that defendant lived across the street from the land, that the trees cut interfered with his view, and that he was seen on the land on the day of the trespass with an ax in his hand and a ladder leaning against a tree, the custodians being then absent, and that no trees or shrubs except those interfering with his view were cut or injured, defendant not testifying, or explaining or denying his presence on the land with ax and ladder, or his cutting the trees and shrubs, supported the verdict for plaintiff.

[Ed. Note.-For other cases, see Trespass, Cent. Dig. §§ 123, 125, 127; Dec. Dig. 46(1).]

In action to recover treble damages for trespass, under Rem. & Bal. Code, § 939, allowing such damages, the required proof by plaintiff is only a preponderance of evidence. [Ed. Note.-For other cases, see Trespass, Cent. Dig. § 126; Dec. Dig. 46(3).] 5. EVIDENCE

76-PRESUMPTIONS-FAILURE

OF PARTY TO TESTIFY.

he refrains from testifying because the truth, if made to appear, would not aid his contention.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 96; Dec. Dig. 76.]

HOLCOMB, J. I dissent. No one can read the record dispassionately in this case without being convinced that the advertising complained of deceived no one and on the contrary very strongly preponderated with The failure of a litigant to testify as to facts respondent that he did, in all the cases ques-ly full knowledge gives rise to an inference that material to his case as to which he has especialtioned, accomplish results satisfactory to all patients. Respondent's general qualifications to practice medicine are not in question. If as a matter of fact-and this is almost purely a question of fact-he did not deceive any one, how can it be contended and adjudged as a matter of law that respondent's advertising "had a tendency to deceive and impose upon credulous and ignorant persons, and so be harmful or injurious to public * safety?" With the professional propriety of such advertising we have nothing to do.

(92 Wash. 297)

*

HAROLD et al. v. TOOMEY. (No. 13255.) (Supreme Court of Washington. July 28, 1916.) 1. TRESPASS 46(3)—ACTS CONSTITUTINGINTENT-TREBLE DAMAGES.

In trespass to recover treble damages, under Rem. & Bal. Code, § 939, providing for trebling damages awarded for trespass in cutting down or injuring trees, it is not necessary to prove intent by defendant, beyond proving the commission of the act and its consequences, for, although the act is penal in its nature and will be strictly construed to discountenance any trebling of damages, except where the trespass is

Department 2. Appeal from Superior Court, King County; Walter M. French, Judge.

Action by Eugene E. Harold and others against Louis W. Toomey. From a judgment for plaintiffs, defendant appeals. Affirmed.

Edwin H. Flick and John A. Frater, both of Seattle, for appellant. Charles R. Barney, of Seattle, for respondents.

HOLCOMB, J. Respondents claimed damages from appellant in the sum of $500, trebled under the provisions of Rem. & Bal. Code, § 939, for willful trespass upon their land and the malicious cutting and injuring of a number of their trees and shrubs thereon. The damages shown by their testimony ranged from $400 to $1,000. The court, sitting without a jury, found that the entry by appellant upon respondents' land was willful,

were absent at the time. No trees or shrubs
except those which interfered with appel-
lant's view of the Sound were cut or injur-
ed. If this were a criminal prosecution for
the same act, and the jury or trier of the
fact believed that these circumstances show-
ed beyond a reasonable doubt the guilt of
the accused, we would not disturb the verdict |
or finding. The quantity of proof required
in this case being only a preponderance of
the evidence, much less can we disturb the
finding. Moreover, the appellant himself did
not see fit to testify and explain or deny his
presence on the land with ax and ladder or 3. DEDICATION
his cutting of the trees and shrubs. His BY DEED.
honor mentioned this circumstance in passing
upon the case, and of that appellant com-
plains. It is argued that, because it is error
to refuse to instruct a jury that no presump-

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes