
    SWIFT v. KELLY.
    (Court of Civil Appeals of Texas.
    Dec. 10, 1910.)
    1. Physicians and Surgeons (§ 22) — Recovery for Services — Conditions Precedent.
    A physician practicing without the license prescribed by Sayles’ Ann. Civ. St. 1897, arts. 3777-3788, as amended in 1901 (Laws 1901, c. 12), requiring a license as a condition precedent to the right to practice medicine, cannot recover for professional services.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 51; Dec. Dig. § 22.]
    2. Evidence (§ 80) — Presumptions—Laws of Other States.
    In the absence of proof to the contrary, it is presumed that the laws of other states are the same as tue laws of Texas on the same subject.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 101; Dec. Dig. § 80.]
    3. Physicians and Surgeons (§ 24) — Action for Services — Petition—Sufficiency.
    A petition in an action in the county court by a nonresident physician for professional and other services rendered a resident, which does not show a compliance with Sayles’ Ann. Civ. St. 1897, arts. 3777-3788, as amended in 1901 (Laws 1901, c. 12), requiring a license as a condition precedent to the right to practice medicine, and which does not show a claim for personal services as distinguished from professional services, in an amount within the jurisdiction of the court, is insuflicient to state a cause of action as against a general demurrer, since, if the services were performed in Texas, the statute must apply, and, if performed in another state, the presumption obtains that the same statutes were in force there.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 55; Dee. Dig. § 24.]
    4. Courts (§ 169) — Jurisdiction — County Courts .
    The county court has jurisdiction of the balance due on account where the balance due after the allowance of credits is less than'$1,000, though the entire account before the entry of the credits exceeds $1,000.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436; Dec. Dig. § 169.]
    5. Evidence (§ 265) — Admissions—Value of Services. .
    Where, in an action for medical services, defendant pleaded and proved unskillful treatment, a note executed by him to the.physician for part of the amount sued for, and letters and telegrams from him to the physician requesting an extension of time for the payment thereof, were admissible as’ an admission at A'arianee with his defense, but were not admissible to prove the value of the services.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1029; Dec. Dig. § 265.]
    6. Physicians and Surgeons (§ 24) — Actions for Services — Evidence — Admissibility.
    In an action by a physician for the reasonable value of professional services, evidence that defendant was wealthy and that there was a custom among physicians to graduate their charge according, to the financial condition of the patient was inadmissible.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 57; Dec. Dig. § 24.]
    Appeal from Tarrant County Court; C. T. Prewett, Judge.
    Action by Dr. Howard A. Kelly against W. B. Swift. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Stanley & Stanley, for appellant. Cope & Ammerman, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DUNKLIN, J.

Dr. Howard A. Kelly, plaintiff, recovered a judgment against W. B. Swift, defendant, for $500, and the defendant has appealed.

In his petition plaintiff alleged that, at defendant’s special instance and request, he had performed for defendant certain professional services as a physician and surgeon, and furnished him nurses and supplies during defendant’s illness, an account of which was attached to the petition as a part thereof, and that defendant “then and there promised plaintiff to pay him on demand so much money as the services and supplies hereinbefore mentioned were reasonably worth; that the said services and supplies were at the time of the sale and delivery thereof reasonably worth the several sums of money charged therefor in said account specified, amounting, after the allowance of all credits due thereon, to the sum of nine hundred sixty-nine and ninety-four hundredths dollars ($969.94).” Plaintiff further alleged in his petition that he resided in Baltimore, Md., that defendant resided in Tarrant county, Tex., and that plaintiff “is a physician and surgeon, practicing his profession in the state of Maryland, and is a professor in Johns Hopkins University.”

Appellant insists that the court erred in overruling his general demurrer to the petition, for that it failed to show that plaintiff was authorized by law to practice as a physician and surgeon and to maintain a suit to collect for such professional services. We sustain that contention. By1 title 82, Sayles’ Ann. Civ. St. 1897, as amended by the Legislature in 1901 (Laws 1901, c. 12), boards of medical examiners were established, a license from which was required as a condition precedent to the right to practice medicine and surgery in this state; and article 3788 of that title reads: “Any person who shall practice medicine, surgery or midwifery in this state in violation of the provisions of this act shall be fined not less than fifty dollars nor more than five hundred dollars for each offense or by both fine and imprisonment not exceeding six months and it shall not be lawful for him or her to recover by action, suit, motion, or warrant, any compensation for services which may be claimed to have been rendered by him or her as such physician, surgeon or midwife, provided, that the provisions of this act do not apply to persons treating disease who do not prescribe or give drugs or medicine.” It is well settled that a physician practicing in this state without the license required by our statutes cannot recover for his services. Peterson v. Seagraves, 94 Tex. 390, 60 S. W. 751; Wickes v. Watts, 30 Tex. Civ. App. 515, 70 S. W. 1001; Kenedy v. Schultz, 6 Tex. Civ. App. 461, 25 S. W. 667. A compliance with the requirements of the law regulating the practice of medicine and surgery having been made a condition precedent to the right to so practice, it is necessary for one suing to recover for such services to allege and prove such compliance, and a failure to so allege in the petition is fatal on general demurrer thereto. Wilson v. Vick, 93 Tex. 88, 53 S. W. 576; Taber v. Institute Bldg. Ass’n, 91 Tex. 92, 40 S. W. 954. It is also well established that, in the absence of proof to the contrary, it will be presumed that the laws of other states are the same as the laws of this state upon the same subject. Gill v. Everman, 94 Tex. 209, 59 S. W. 531; Caledonia Ins. Co. v. Wenar, 34 S. W. 388. Plaintiff failed to allege in what state his services were performed. If. they were performed in Texas, then our statutes would apply as a matt.er of course. If performed in some other state, then the presumption obtains that the same statutes have been there enacted and are in force. While the account attached to the petition includes certain items other than professional services rendered by plaintiff, the aggregate of the amounts charged therefor was not within the jurisdiction of the court, and, if the items for the personal services of plaintiff had been excluded, it would have been necessary for the court to dismiss the petition of his own motion for want of jurisdiction; and hence the general demurrer was sufficient to raise the question now under discussion. The items charged in the account were indefinitely stated, and defendant’s special exception thereto for uncertainty should have been sustained. The amount sued for was within the jurisdiction of the court, and de-. fendant’s special exception to the petition presenting the contention that, as the entire account before the entry of credits thereon was for $1,835.06, the court was without jurisdiction, was properly overruled. Gimbel v. Gomprecht, 89 Tex. 497, 35 S. W. 470; Davis v. Pinckney, 20 Tex. 341.

Over defendant’s objection, plaintiff 'was permitted to introduce in evidence defendant's promissory note in plaintiff’s favor for $500 of the amounts sued for, and also letters and telegrams from defendant to’ plaintiff requesting an extension of time for its payment. The ground of defendant’s objection was that, as the suit was to recover on a promise to pay the reasonable value of the services, evidence showing a contract to pay a specific sum was irrelevant and incompetent. Among other defenses defendant alleged unskillful and negligent treatment oi him by plaintiff, and offered evidence in support thereof. As against this defense, we think the evidence to which objection was made was admissible as the same would be in the nature of an admission at variance with that plea. But the testimony was not admissible to prove the value of the services rendered by plaintiff. Shiner v. Abbey, 77 Tex. l, 13 S. W. 613.

We are of opinion, further, that the court erred in permitting plaintiff to show the reasonable value of his services by proof that defendant was wealthy, coupled with further proof of a custom among physicians to graduate their charges according to the financial condition of the patient, and to charge a wealthy person a higher fee by reason of his superior ability to pay. As noted above, the suit was to recover the reasonable value of professional services rendered by plaintiff. In 30 Cyc. 1600, it is stated that there is. a conflict in the authorities on this question, and the announcement seems borne out by the decisions there cited. In Robinson v. Campbell, 47 Iowa, 625, one of the cases cited, it was held that such testimony is not admissible, and the reasoning there advanced we think is sound. Certainly no court would hold that the value of- ordinary labor could be determined by such a test, and upon principle we can see no distinction between such a claim and one of the character now under discussion. If the recovery sought in this suit for professional services had been upon an alleged implied contract by plaintiff to pay such fees as are customarily charged for the same character of services performed for a patient of like financial ability to pay a fee therefor, theh a different question would be presented, but, as the same is foreign to the record, we forego a discussion of it.

For the reasons noted, the judgment is reversed, and the cause remanded.  