Whitehead v. Coker

• Decision Date: 03 April 1917
• Docket Number: 7 Div. 386
• Citation: 76 So. 484,16 Ala.App. 165
• Parties: WHITEHEAD et al. v. COKER.
• Court: Alabama Court of Appeals

76 So. 484

16 Ala.App. 165

WHITEHEAD et al. v. COKER.

7 Div. 386

Court of Appeals of Alabama

April 3, 1917

Rehearing Denied June 4, 1917

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Assumpsit by F.E. Whitehead and another, as partners and individuals against J.W. Coker. From judgment for defendant, plaintiffs appeal. Affirmed on rehearing.

D.S Anderson, of Birmingham, and Claude B. Sims, of Center, for appellants.

Hugh Reed, of Center, and Goodhue & Brindley, of Gadsden, for appellee.

BROWN P.J.

This is an action on a promissory note given by the defendant to Drs Dean & Dean for professional services rendered as physicians, and the defense interposed is that such services were rendered by the payee of the note in violation of the criminal statutes prohibiting the practice of medicine by any one who has not obtained a certificate of qualification from the board of medical examiners. Code 1907, § 7564 (Acts 1915, p. 661); Smith v. State, 8 Ala.App. 352, 63 So. 28; Id., 183 Ala. 116, 63 So. 70; Fealy v. City of Birmingham, 73 So. 296; Bragg v. State, 134 Ala. 165, 32 So. 767, 58 L.R.A. 925.

The statutory provisions found in chapter 39 of the Code, embracing §§ 1626-1646, are regulations for the benefit of the public as well as for persons dealing with those who hold themselves out to the public as professionally qualified to treat diseases of human beings; and it is the public policy of the state to punish the violation of these statutes, and contracts made in violation of these statutes are void in the hands of all persons involved in the guilt of the transaction. Harrison v. Jones, 80 Ala. 412; Sunflower Lbr. Co. v. Turner, 158 Ala. 191, 48 So. 510, 132 Am.St.Rep. 20; Woods v. Armstrong, 54 Ala. 150, 25 Am.Rep. 671; Jemison v. B. & A.R. Co., 125 Ala. 383, 28 So. 51; General Electric Co. v. Town of Ft. Deposit, 174 Ala. 179, 56 So. 802; Turner v. Merchants' Bank, 126 Ala. 397, 28 So. 469; Dudley v. Collier & Pinckard, 87 Ala. 431, 6 So. 304, 13 Am.St.Rep. 55; Campbell v. Segars, 81 Ala. 259, 1 So. 714; Code 1907, § 1644.

In Wood v. Armstrong, supra, it was announced that:

"It has been repeatedly determined that a penalty inflicted by statute upon an offense implies a prohibition, and a contract relating to it is void, even when it is not expressly declared by the statute that the contract shall be void. *** It would indeed be a strange anomaly if a contract made in violation of a statute, and prohibited by a penalty, could be enforced in the courts of the same country whose laws are thus trampled on and set at defiance. *** The rule above declared is not only founded in the soundest principles of morality and public policy, but its enforcement is necessary to maintain the supremacy of the law and the dignity of the state."

Daniel, in his work on Negotiable Instruments (volume 1, p. 804, § 806) says:

"There are some defenses which are as available against a bona fide holder for value and without notice as against any other party. They are those which go to show that the instrument was absolutely void, and not merely voidable, (1) by reason of the incapacity of the party assuming to contract; or (2) by reason of some positive inhibition of law; or (3) by reason of the want of consent of the party sought to be bound by the particular contract."

In addition to interdiction of the act or transaction out of which the alleged cause of action arises, the statute (Code 1907, § 1644) provides:

"A physician whose certificate of qualification is not on record in the county in which he resides shall not be entitled to recover at law any compensation for services rendered in treating diseases of human beings."

As early as Saltmarsh v. Tuthill, 13 Ala. 388, the Supreme Court said:

"It is laid down by elementary writers as well as the adjudged cases that a bona fide holder for value, without notice, is entitled to recover upon any negotiable instrument which he has received before its maturity, notwithstanding any defect or infirmity in the title of the person from whom he derived it, although such person may have acquired it by fraud or by theft or robbery. The same doctrine is in general applicable to one thus becoming the holder of the negotiable

paper when the note or bill, or the indorsement thereof, is founded on an illegal consideration. The law upon this point is founded in public policy, and there is no distinction between a case of illegality where the consideration is tainted with moral crime, which is malum in se, and where it violates the positive prohibition of a statute, which is malum prohibitum; for in each case the innocent holder may be otherwise exposed to the most enormous consequences, and the circulation of negotiable instruments would be materially obstructed, if not altogether stopped. The only exception is where the statute creating the prohibition has, at the same time, either expressly or by necessary implication, made the instrument absolutely void in the hands of every holder, whether he has notice of the illegality or not."

In Hanover National Bank v. Johnson, 90 Ala. 552, 8 So. 42, it was said:

"The case made by this record was not materially different from that presented on the former appeal in respect to the place of the contract--whether made in this state or not--and we adhere to the conclusion then reached, that it was an Alabama contract, and void for noncompliance with the statute requiring certain classes of fertilizer to be analyzed and tagged before being sold or offered for sale here. The statute, in express terms declares, 'A sale or exchange of fertilizers not so tagged is void.' Code [1886] § 141; Johnson v. Hanover National Bank, 88 Ala. 271 . The note sued on, issuing out of and resting on a contract thus expressly declared to be absolutely void, cannot be enforced, even by a bona fide purchaser for value without notice and before maturity."

This doctrine was later reaffirmed in Ala. Nat. Bank v. Parker & Co., 146 Ala. 516, 40 So. 987, where it was held:

"The circuit court committed no error in sustaining the demurrer to the plaintiff's replication to the special

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