Evans v. McGranaghan

California Court of Appeal Jan 28, 1935 No. Civ. 9505Published

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Holding. The court held that the scope of a chiropractor's practice under the Chiropractic Act cannot be determined without extrinsic evidence defining what is taught in chiropractic schools, and since the plaintiff failed to provide such evidence, the judgment for the defendant was affirmed.

Issues

Whether the scope of a chiropractor's practice under the Chiropractic Act can be determined without extrinsic evidence regarding what is taught in chiropractic schools.
Whether the plaintiff, seeking a declaration of rights under a contract, bears the burden of producing evidence to define the scope of the defendant's professional license.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It contains no definition of “chiropractic as taught in chiropractic schools or colleges” and hence in the absence of evidence on that subject it is impossible of precise construction.”

“the court has no way of determining the scope of chiropractic as taught in such schools and colleges in the absence of evidence on that subject, and hence a resort to such evidence would be proper.”

“since the determination of such scope of practice depended upon evidence, it was incumbent upon plaintiff to produce it.”

THE COURT.

Respondent is a licensed chiropractor under section 7 of the Chiropractic Act, Statutes of 1923, lxxxviii. Respondent and appellant entered into a contract in writing whereby respondent agreed to treat appellant for a period of one year. The contract contained the following provision: “The said services shall include chiropractic adjust

[204]

ment, and all mechanical, hygienic and sanitary measures incident to the care of the body deemed necessary by the party of the second part (respondent), and such mechanical, hygienic and sanitary measures shall include diet, concussion, traction, enemas, diathermy, sinusoidal, galvanic, Sun-lite, cold quartz, massage, baths, hot and cold packs, manipulation, massage, X-ray, Laboratory tests, and such other like measures, provided that such measures or modes of treatment are within the scope of the practice under the provisions of the Chiropractic Act of California. ...”

Appellant filed a complaint alleging that respondent refused to give him any treatments under the contract except chiropractic adjustments, on the ground that the mechanical, hygienic and sanitary measures enumerated in the contract were not within the legal scope of his license under the Chiropractic Act, and prayed for a declaration of his rights under the contract pursuant to Code of Civil Procedure section 1060. Respondent, answering, admitted the contract and his refusal to perform beyond giving appellant chiropractic adjustments, and justified his refusal on the ground of a conflict as to the scope of his license and the danger of criminal prosecution and civil liability for negligence if he practiced any measure outside the scope of his license. The trial court gave judgment for defendant, from which this appeal is taken.

The decision of the court recites that the case was submitted to the court without evidence being introduced.

Section 7 of the Chiropractic Act authorizes the issuance of a license which “shall authorize the holder thereof to practice chiropractic in the State of California as taught in chiropractic schools or colleges; and, also, to use all necessary mechanical, and hygienic and sanitary measures incident to the care of the body, but shall not authorize the practice of medicine, surgery, osteopathy, dentistry or optometry, nor the use of any drug or medicine now or hereafter included in materia medica”.

Evans v. McGranaghan

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THE COURT.

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