Majority
p. 439Fortesque W. Anderson, Plaintiff, v. National Casualty Company, Defendant. Second Department, June 7, 1912.
Headnote
Insurance — provision requiring insured to be attended by “ physician ” — licensed osteopath is physician.One licensed to practice osteopathy under the Public Health Law of this state is a “ regularly qualified physician ” within the meaning of an insurance policy which required the insured to be attended by such physician in order to recover for sick benefits, although such osteopath cannot administer drugs or perform surgery with instruments.
Jenes, P. J., and Garb, J., dissented.
Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
John F. Bradner, for the plaintiff.
Theodore H. Lord, for the defendant.
Defendant should pay the plaintiff a stipulated sum for sick benefits, provided the osteopath who attended him was a “regularly qualified physician,” as the policy requires, for in such case the plaintiff has performed the contract on his part. The attendant was licensed under the law of the State of New York (Public Health Law [Consol. Laws, chap. 45; Laws of 1909, chap. 49], art. 8), but thereby he is not permitted to administer drugs or to perform surgery with instruments.
p. 440
Thereby he became a doctor of osteopathy. This license places no other limitation upon his status as a physician or his service to persons in sickness. (Matter of Bandel v. Department of Health, 193 N. Y. 133 .) So he was regularly licensed to attend the assured when sick, to administer anything curative save drugs, and to do what -a surgeon may do without instruments. The statute gave him' the legal status of a physician, and that was what the policy contemplated. The policy required a person to attend the assured, licensed by the State to do so, for the cure of the disease. The term used is equivalent to one that the assured shall be attended by one authorized by the law to treat the sick. I find a definition adopted by learned writers that a “physician is one who is versed in medical science, a branch of which is surgery, and a surgeon is a physician who treats bodily injuries and ills by manual operations and the use of surgical instruments and appliances.” The osteopath can use no instruments or drugs, and would not, but he is licensed to treat the injured and ailing bodily under a statute that regulates' the “Practice of Medicine.” Section 166of the Public Heálth Law (Art. 8), provides: “ i. The practice of medicine is defined as follows: A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as. being able to diagnose, treat, operate or prescribe for any human disease, .pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition. 8.- Physician ’ means a practitioner of medicine.” Where the Legislature states what the practice of medicine is and who may practice it, the words have the meaning — a modified one, perhaps — which the statute gives them.
The plaintiff should have judgment for $201". 65, with interest from May 26, 1916, with costs.
Woodward and Rich, JJ., concurred; Jenks, P. J., and Carr, J., dissented.
Judgment for plaintiff,, with costs, in accordance with the terms of the submission.
Cases cited
- Bandel v. Department of Health 193 N. Y. 133 p. 440