O'Bannon v. Widick

• Decision Date: 13 November 1917
• Docket Number: No. 2014.,2014.
• Citation: 198 S.W. 432
• Parties: O'BANNON v. WIDICK et al.
• Court: Missouri Court of Appeals

198 S.W. 432

O'BANNON v. WIDICK et al.

No. 2014.

Springfield Court of Appeals. Missouri.

November 13, 1917.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by R. H. O'Bannon against A. A. Widick and another. From a judgment for plaintiff, defendants appeal. Reversed and rendered, and case certified to the Supreme Court.

J. C. Dyott, of Willow Springs, for appellants. L. P. Main, of Willow Springs, and O. F. Wayland, of West Plains, for respondent.

FARRINGTON, J.

The facts of this case are practically agreed on by the parties. The plaintiff (respondent) brought suit against the defendants for the sum of $109.35, alleging that defendants were indebted to him in such sum "for professional services as a mechano-therapist, rendered by him to the defendants and their family, at their request." The cause was first tried in a justice court, where judgment went for defendants. On appeal to the circuit court, plaintiff obtained judgment for $104.50, from which the defendants appealed to this court.

The evidence in the record clearly justifies the amount of the judgment and should not be disturbed, were it not that under the view we take of the case plaintiff's evidence clearly bars him from maintaining this action. His evidence tends to show that defendants requested him to call on various members of the family and treat them while sick and afflicted with bodily infirmities, and it is for such services rendered that plaintiff seeks to recover. It is admitted that plaintiff had failed to comply with the laws of this state contained in the sections of chapter 78, R. S. 1909, and particularly sections 8311, 8312, 8313, and 8314. He had no legal certificate to treat the sick, such as is required in the sections mentioned. The plaintiff, under his own testimony, is clearly guilty of a violation of our criminal law, which makes his act a misdemeanor, under section 8315, R. S. 1909, and subject to fine and imprisonment. State v. Smith, 233 Mo. 242, 135 S. W. 465, 33 L. R. A. (N. S.) 179.

Plaintiff, however, contends (conceding for the argument of this case that he had violated the criminal law of the state) that, notwithstanding this, he is entitled to recover under the existing law of Missouri. His theory is this: That the Revised Statutes of 1879, section 304, was the same as section 8315, R. S. 1909, except that the section as it stood in 1879 had an additional provision that the person violating such law "shall not be permitted to recover any compensation for services rendered as such physician or surgeon," and that in the case of Davidson v. Bohlman, 37 Mo. App. 576, it was held that no recovery for such services could be had; that in the revision of 1889, made after the Bohlman decision, the law was amended, leaving out of the statute that part above quoted, and that then followed the decision in the case of Smythe v. Hanson, 61 Mo. App. 285, in which the St. Louis Court of Appeals held that the omission of the provision as to a recovery for services indicated that the Legislature intended to abolish the penalty of not permitting a recovery, and that that case held, notwithstanding there be a breach of the criminal law, that the plaintiff could recover, and that the law has remained in that condition for over 20 years, there being no change in the statute, and this, although a revision of the medical act was made, seven years after the Smythe Case was decided. Plaintiff therefore argues that under the well-recognized rules of statutory construction, to get at the legislative intent, we must hold that section 8315, R. S. 1909, must have read into it the decision in Smythe v. Hanson, and that the plaintiff can recover; wherefore he says the judgment of the trial court should be affirmed.

If the case be viewed only from the angle presented by plaintiff, it would seem that his contention is correct; but when it is held in the light of other well-known principles of our law his theory will not work out. Section 8315, R. S. 1909, makes it a misdemeanor for the plaintiff to perform the services for which he here attempts to recover compensation. State v. Smith, supra. Therefore plaintiff is seeking to be paid for the commission of a crime. Contracts which are made for or about any matter which is prohibited and which is unlawful are void, and cannot be made the foundation of a cause of action. Cherokee Strip Live Stock Ass'n v. Cass Land & Cattle Co., 138 Mo. 394, 40 S. W. 107; Tri-State Amusement Co. v. Forest Park Highlands Amusement Co., 192 Mo. loc. cit. 414, 90 S. W. 1020, 4 L. R. A. (N. S.) 688, 111 Am. St. Rep. 511, 4 Ann. Cas. 808; Rothwell v. Gibson, 121 Mo. App. loc. cit. 284, 98 S. W. 801; Friend v. Porter, 50 Mo. App. 89; Downing v. Ringer, 7 Mo. 585; 9 Cyc. 475; Tandy v. Elmore-Cooper Live Stock Com. Co., 113 Mo. App. 409, 87 S. W. 614. The law will not lend its sanction or aid to a claim based upon its violation. 2 Elliott on Contracts, § 645. See, also, sections 646, 647, and 648. The rule adopted, which is that the law will not aid in enforcing agreements founded on illegal consideration, is not for the benefit of the parties but for the public good. Id. § 665. Our medical act was passed for the protection of the public. State v. Smith, 233 Mo. 242, 135 S. W. 465, 33 L. R. A. (N. S.) 179. And the rule announced in 2 Elliott on Contracts, § 669, citing a Missouri case (Tandy v. Elmore-Cooper Live Stock Co., supra), is as follows:

"In case the penalty is attached for the protection of the public, a contract which violated the provision is almost universally declared void."

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