CHAPMAN, Justice.
The County Solicitor of Duval County, Florida, filed in the Criminal Court of Record of said county an information against the appellant Baxter charging the violation of Subdivisions (a), (b) and (c) of Subsection (3) of Section 458.15, F.S.A. Count One charged that appellant Baxter, on June 12, 1949, not being licensed or authorized to practice medicine, did then and there practice medicine in treating one Mary Virginia McCaslin. The Second Count charged that appellant Baxter, on June 12, 1949, did unlawfully use in connection with his name the title and designation of doctor — tending to imply and designate himself as a practitioner of medicine. The Third Count charged that the appellant Baxter, on June 12, 1949, not being a licensed physician, did use in connection with his name the designation "doctor", tending to imply and designate him as a practitioner of medicine in undertaking to diagnose the physical condition of one Mary Virginia McCaslin.
The defendant-appellant was placed upon trial and by a jury convicted on each of the three Counts. On a motion for a directed verdict, seasonably made, counsel for appellant contended that the State's evidence was legally insufficient to sustain a verdict for the State. The same contention was presented on a motion for a new trial, with the further contention that prejudicial testimony was introduced against him during the progress of the trial. The trial court denied the motion for a new trial and adjudged the defendant-appellant guilty under each Count. Judgment was suspended under Counts One and Two and under Count Three he was sentenced to three years in the State Prison. On appeal here he contends that prejudicial testimony was admitted against him and that the State's evidence is legally insufficient to support the verdict and judgment entered below.
Section 458.13, F.S.A., defines the practice of medicine in the State of Florida, with enumerated exceptions, and is viz.: "A person is practicing medicine within the meaning of this chapter, 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 or who shall offer or undertake by any means or method to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition."
Pertinent exceptions to the rule, supra, are: (1) or any one while serving without salary or professional fees on the resident medical staff of any legally incorporated hospital; (2) or the furnishing of medical assistance in case of emergency; (3) or the domestic administration of family remedies; (4) or the practice of the religious tenets of any Church; (5) or to any office assistant or a legally licensed practitioner of medicine rendering such assistance as is usually rendered by a nurse and who shall work only under the direct supervision and express orders of his employer in his office and not otherwise.
Section 458.13, supra, contemplates, and makes it an essential to the practice of medicine, that "a person * * * who holds himself out [to the general public as competent and lawfully qualified] as being able to diagnose, treat, operate or prescribe for any human disease * * *." Exceptions to the Act are recited therein and one being that any one "in case of emergency" may furnish "medical assistance" without practicing medicine or violating the law. In our recent holding in McMillon v. State, Fla., 45 So.2d 117, 118, we held that the law prohibits the general "practice of medicine" or a person (unlawfully) holding himself out to the public as qualified to practice medicine.
Dr. A.H. Withers testified that he was a licensed physician, owned and operated the Springfield Hospital, and had practiced medicine in the City of Jacksonville for twenty years, or more. He hired the appellant Baxter in February, 1949, and paid him $125.00 per month, with room and board. He employed him to perform the duties of a practical nurse and orderly for his office and about the hospital. Baxter was discharging his duties as such on June 12, 1949. The prosecutrix, Mrs. McCaslin, came to his hospital in April, 1949, and arranged with him to treat her during pregnancy and deliver her child at his hospital for the total sum of $75.00. She agreed to pay $5.00 per week and call weekly at his office for consultation and treatment. Dr. Withers was out of Jacksonville on June 12, 1949, but saw Mrs. McCaslin in his hospital with a baby on Monday, June 13, 1949, where he treated her, and she left the hospital on Tuesday afternoon with her baby. He insisted upon payment of $75.00 by the husband, which sum was obtained by wire from some point in Texas. The receipt for the $75.00 was signed "Dr. A.H. Withers by H.S. Baxter Assistant". Dr. Withers later sent Mrs. McCaslin some medicine to settle her stomach by Irene Bater. Dr. Withers directed Baxter to call Dr. Thomas, if a doctor was needed about the hospital during his absence. Dr. Withers stated that the baby was a boy and normal in every way, but came prematurely. Dr. Withers clashed with the McCaslins at the hospital about the payment of their bill.
Mrs. McCaslin testified that she met Baxter through a mutual friend in April, 1949, and engaged him to treat her during pregnancy and deliver her baby. She consulted a Dr. Harrell and paid him $10.00 to do the same thing. She also arranged with Dr. Withers in April, 1949, to treat her during pregnancy and deliver her child at an agreed sum of $75.00, which included hospitalization. Dr. Baxter did not treat her or make an examination of her any time prior to June 12, 1949. On the early morning of June 12, 1949, Mr. McCaslin went to the hospital for Baxter and he went to the home and took Mrs. McCaslin to the Springfield hospital, where he rendered her every possible assistance about the delivery of the child. The following morning Dr. Withers came in and took over the patient. Baxter gave her a pink pill and told her to swallow it. Likewise, the patient's mother gave her some pink pills. No anesthetic was given. She was introduced to the defendant as Dr. Baxter and thereafter called him doctor. He bathed the patient on Tuesday and told her that her condition was good, but did not see her from Sunday until Tuesday, but Dr. Withers saw her each day. Her husband clashed with Dr. Withers about the payment of the $75.00. She and her husband agreed "to get the $75.00 back from Baxter and get the $125.00 paid to St. Vincent's Hospital and several other additional dollars or they were going to send Baxter to jail". (R. p. 28.) Dr. Withers made out the birth certificate but Dr. Baxter delivered the child. As we study the record, no disputes or clashes occurred until the very hour that Dr. Withers insisted that McCaslin pay the sum of $75.00 for professional services and hospitalization of his wife. Mrs. McCaslin admitted a discussion with her husband to the effect that she was going to make Herschell Baxter give her back that $75.00, money paid for the delivery of the baby, and the $125.00 paid for the incubator — that he (Baxter) would give her so many thousand dollars or else she would send him to the pen. (Tr. 121 and 140-141.)
On June 14, 1949, Dr. Withers and Mr. McCaslin clashed over the payment of the $75.00 for the delivery of his baby. On June 21st Mr. McCaslin made a complaint against Baxter to the agents of the State Bureau of Narcotics in Jacksonville. The agents went to Dr. Withers' office and asked for Dr. Baxter and found him and he answered to the name of "Dr. Baxter". They obtained from Baxter a signed statement about his attendance at birth of the McCaslin baby, which statement was received in evidence. In a broad sense, the statement is not in conflict with his testimony nor that as given by Mrs. McCaslin about services rendered by him during her confinement. It is not disputed that the baby arrived around 10:00 o'clock A.M., June 12, 1949, and that Baxter did all he could to assist her during the confinement.
It is not disputed that Mr. McCaslin called Baxter at the hospital around 5:00 o'clock A.M., June 12, 1949, and requested that he come out and assist his wife in confinement, and Baxter declined to go. Around 8:00 o'clock McCaslin drove to the hospital and got Baxter and took him to his home. Baxter and members of the McCaslin family took Mrs. McCaslin to Dr. Withers' hospital and she gave birth to the child some one to two hours after arrival. Dr. Withers testified that he expected to return to his office on Saturday night, June 11, 1949, and so informed his assistant, Baxter. Baxter expected to find Dr. Withers at the hospital when he arrived there with Mrs. McCaslin and learned for the first time that Dr. Withers had been delayed. Baxter then called Dr. Thomas, but could not get him, and Mrs. McCaslin was then in labor or her child had arrived. Baxter, to the very best of his ability, assisted Mrs. McCaslin in her confinement. It is true that Baxter exceeded his duties as an assistant to Dr. Withers as a nurse or an orderly, but, in the absence of Dr. Withers and his failure to get Dr. Thomas, it was an emergency and an exception recognized in Section 458.13, supra.
The record reflects that Baxter joined the Army during the year 1943, and was discharged during the year 1945. During this service he rendered duties from that of surgery to first aid and was classed as Surgical Technician and attached to the 24th Division, Medical Corps. The prefix "Doctor" is commonly applied by the public to druggists, nurses, dealers in drugs and others. We fail to find in the record evidence showing that Baxter held himself out (to the general public) as being able to diagnose, treat, operate, or prescribe for any human disease on June 12, 1949, so as to bring his action within the inhibitions of Section 458.13, but, on the other hand, as an exception thereto, to-wit, "medical assistance in case of emergency". Watson v. Centro Espanol De Tampa, 158 Fla. 796, 30 So.2d 288.
Assigned as error on this appeal are the following questions propounded by the trial court to the appellant when testifying before the jury viz.:
"By the Court: Q. You say you gave that two hour old baby two ounces of milk? A. Yes.
"Q. How much? A. No, it's about an ounce of milk, boiled milk.
"Q. A two hour old baby and you gave it an ounce of boiled milk? A. Yes.
"Q. How many babies have you tried feeding that way? A. Not many.
"Q. What was the proportions? A. Oh, a teaspoon full of boiled milk and boiled water.
"Q. How much boiled water? A. About an ounce.
"Q. A teaspoon full — how much milk? A. About a teaspoon full of milk.
"Q. What kind of milk? A. I don't know what it was.
"Q. Then, how do you know what you gave it? A. I do know what it was. I don't remember the name of it.
"Q. Was it in a can or a bottle? A. Put in the regular place for feeding babies.
"Q. Was it a powder? A. No, sir. A liquid. Kind of like Pet milk.
"Q. And you gave a teaspoon full of it and about an ounce of water when the baby was two hours old? A. Yes, sir.
"Q. Had you given it any water before that? A. Yes, sir.
"Q. How much? A. About a half ounce.
"Q. How often? A. Every four hours.
"Q. Put a dress on it? A. My wife put a dress and strip on it.
"Q. A dress and diaper? A. Yes, sir.
"Q. Immediately after the baby was born? A. Yes sir.
"Q. You are sure about that? A. Yes, sir."
A ruling on this assignment is unnecessary as a new trial is being awarded.
Reversed.
ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.
THOMAS, SEBRING and HOBSON, JJ., dissent.