Katsafaros v. Agathakos , 52 Ohio App. 290 ( 1935 )

The plaintiff in error, Alex Katsafaros, filed his petition in the Court of Common Pleas of Mahoning county, Ohio, against Anastasios Agathakos, the allegations of said petition, omitting the formal parts thereof, being as follows:

"Plaintiff for his cause of action against this defendant avers that he is the discoverer of a certain formula or medicinal compound; that he at all times has preserved unto himself the secret formula for compounding the same; that said compound is intended for medicinal purposes and is in the nature of a hard paste substance and its use is intended for the remedying and/or cure of a certain specific disease and is applied by the burning and melting thereof, wherein the fumes and gases released by such burning are confined to the skin and pores of the body, and further avers that this plaintiff has sole control of the manufacture, vending and use of such compound, and that no person or persons, partnerships or corporations have the secret formula thereof, or use the same except by express contract with this plaintiff.

"Plaintiff further avers that this defendant on or about the month of July, 1933, solicited this plaintiff for the use of the aforesaid secret compound in behalf of himself and his said wife and his two children, to-wit: Constance and Chris Agathakos; that this defendant requested this plaintiff that the said plaintiff furnish to defendant sufficient of said secret formula and compound so that this defendant, his said wife and said children might be treated by the use thereof.

"Plaintiff further avers that on or about the month of July, 1933, it was agreed by and between this plaintiff and this defendant that said plaintiff would furnish to the said defendant said secret formula and compound with directions and use for treatment of a certain specific disease, and avers that in pursuance with said agreement he did furnish to this defendant sufficient of said secret compound to provide treatment for this defendant, his wife and children aforesaid.

"Plaintiff further avers that defendant agreed with plaintiff that if plaintiff would furnish said secret compound to the defendant in sufficient quantities that said defendant, his wife and children might use the same as a remedy for that certain specific disease, the said defendant would pay to plaintiff the sum of Fourteen Hundred Dollars ($1400.00), one-half of which was to be paid by the defendant to the plaintiff upon delivery of said secret compound, and the other half of which was to be paid by the defendant to the plaintiff in the event the said defendant, his wife and said children were found to be negative after using said secret formula.

"Plaintiff avers that upon delivery of said secret formula to said defendant, sufficient to be used by said defendant, his said wife and children, defendant paid to plaintiff the sum of Three Hundred Sixty-five Dollars ($365.00), but did not, and has not paid to plaintiff the remainder of Three Hundred and Thirty-five Dollars ($335.00), which defendant promised and agreed to pay plaintiff upon delivery of said secret compound.

"Plaintiff further avers that said defendant, his wife and said children did use said secret compound; that before the use thereof, they showed by scientific tests applied that they were afflicted with said specific disease; that after using said secret compound the said defendant, his wife and said children upon scientific tests being made were found negative or non-afflicted with said disease, whereby and by reason whereof defendant became indebted to plaintiff under defendant's agreement with said plaintiff in the further sum of Seven Hundred Dollars ($700.00), making a total indebtedness of said defendant to said plaintiff under said agreement in the sum of Ten Hundred Thirty-five and no/100 Dollars ($1035.00).

"Wherefore, plaintiff prays judgment against this defendant on his cause of action above stated in the sum of Ten Hundred Thirty-five Dollars ($1035.00), together with his costs, and interest."

In said Court of Common Pleas the defendant filed a demurrer to the petition of plaintiff on the grounds:

(1) That the plaintiff has no legal capacity to sue;

(2) That the petition does not state facts which show a cause of action.

This demurrer was, by the Common Pleas Court, sustained, and the plaintiff not desiring to plead further final judgment was entered against the plaintiff and in favor of the defendant.

The cause comes into this Court of Appeals upon petition in error to reverse the decision, judgment and finding of said Common Pleas Court, two grounds of error being urged:

First: That the order of the court below in sustaining the demurrer of defendant in error in the court below was contrary to law.

Second: That the judgment, order and decree of the court below rendering final judgment as against this plaintiff in error and in favor of defendant in error on said petition is contrary to law.

No briefs have been filed by either party to this error proceeding. From the argument of counsel upon oral hearing in this court we ascertain that the action of the Common Pleas Court in sustaining the demurrer was based upon the provisions of Sections 1286 and 1287, General Code of Ohio, and it is admitted by counsel for plaintiff in error that if the provisions of these sections of the General Code are constitutional, as being a proper exercise of the police power of the state for the protection of the health of its inhabitants, then there is no error in the action of the Common Pleas Court in sustaining the demurrer and entering final judgment against the plaintiff below. From an examination of the allegations of the petition it is found that the very terms of the petition show that the secret formula, and the compound made therefrom, "is intended for medicinal purposes," and that the plaintiff agreed to and did furnish to the defendant said medicinal compound, together with directions for use and treatment of a certain specific disease.

Section 1286 of the General Code so far as pertinent to this action provides:

"A person shall be regarded as practicing medicine * * * within the meaning of this chapter who * * * diagnoses for a fee or compensation of any kind, or prescribes, advises, recommends, administers or dispenses for a fee or compensation of any kind, direct or indirect, a drug or medicine, appliance, application, operation or treatment of whatever nature for the cure or relief of a * * * disease * * *."

Section 12694, General Code of Ohio, provides:

"Whoever practices medicine or surgery, or any of its branches before obtaining a certificate from the state medical board in the manner required by law, * * * shall, for the first offense be fined not less than twenty-five dollars nor more than five hundred dollars, and for each subsequent offense * * * or imprisoned in the county jail or workhouse not less than thirty days nor more than one year, or both. * * *"

Sections 1262 to 1268, inclusive, and following sections of the General Code of Ohio, provide for the appointment of a Medical Board, the members of which shall be appointed by the Governor with the advice and consent of the Senate, and further provide for the organization of the board, compensation of the members, its meetings, the salary of its officials, and the records of the board.

Section 1269 of the General Code provides:

"Each person who desires to practice medicine or surgery shall file with the secretary of the state medical board a written application, under oath, on a form prescribed by the board, and furnish satisfactory proof that he is more than twenty-one years of age and of good moral character."

Section 1270, General Code, provides the requisites for admission to examination.

Section 1274, General Code, provides:

"If the applicant passes such examination, and has paid the fee required by law, the state medical board shall issue its certificate to that effect, signed by its president and secretary, and attested by its seal. * * *."

Other sections of the General Code provide for the manner of holding the examination, the license fee, etc., but these are not pertinent to a decision of this cause.

By reference to the above quoted sections of the General Code, and from an examination of the allegations of the petition, it is clear that the plaintiff, at the time alleged in the petition, was "a person who dispensed for a fee or compensation a medicine or treatment for the cure or relief of a specific disease." There is no allegation in the petition that the plaintiff had ever filed any application for examination by the state medical board, or had ever received any certificate authorizing him to practice medicine in the state of Ohio, therefore the act of said plaintiff in furnishing said secret formula and compound to the defendant for the compensation of $1400 agreed upon between the parties, and the further act of said plaintiff in furnishing to defendant directions for use and treatment of a certain specific disease, were in violation of the provisions of Section 12694 of the Criminal Code of Ohio.

The constitutionality of Section 1286, General Code, providing for the examination and registration of those practicing medicine, has been determined in the case of Triplett v. State, 23 C.C. (N.S.), 172, 29 C.D., 565, the first paragraph of the syllabus of which reads:

"Sections 1286, 1287 and 12694, Ohio General Code, relating to the appointment and powers of the state board of health and the state board of medical examination and registration, and providing for examination and registration of those practicing medicine, are a proper exercise of the police power and are constitutional."

"That the practice of medicine may be regulated by legislation has been decided in every court in which the question has arisen. In the leading case, Dent v. W. Va., 129 U.S. 114,122, Mr. Justice Fields says: `The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure, or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud. As one means to this end it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning.' * * *." State v. Marble, 72 Ohio St. 21, 34,73 N.E. 1063.

"It is competent for the state under its power to provide for the welfare of its people, to establish needful regulations and impose reasonable conditions calculated to insure proper qualifications, both with respect to learning and moral integrity, of persons desiring to engage in the practice of medicine in the state, and require compliance therewith by such persons before they shall be permitted to practice within the state. The regulations adopted by this statute are of that character, and do not infringe upon the privileges and immunities guaranteed by Article 4, Section 2 of the Federal Constitution to the citizens in the several states nor breach those secured to citizens of the United States by the fourth article of amendment of that constitution." State v. Mosher, 78 Iowa 321,43 N.W. 202.

"The right to labor and enjoy the rewards thereof is a natural right which may not be unreasonably interfered with by legislation. Where, however, the pursuit concerns in a direct manner, the public health and welfare, and is of such a character as to require a special course of study or training, or experience, to qualify one to pursue such occupation with safety to the public interests, it is within the competency of the General Assembly to enact reasonable regulations to protect the public against evils which may result from incapacity and ignorance." State v. Gardner, 58 Ohio St. 599, 51 N.E. 136, syllabus, paragraph 1.

The police power manifestly extends to the protection of life, limbs, health, comfort and the quiet of all persons and the protection of all property within the state. By this police power of the state persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state. Thorpe v. Rutland Burlington Railroad Co., 27 Vt. 140, 62 A.D., 625. Commonwealth v. Alger, 7 Cush., 53. The People v. Warden of City Prison,144 N.Y., 529, 39 N.E. 686. Singer v. State, 72 Md. 464,19 A. 1044.

So we hold that by the overwhelming weight of authority the statutes of Ohio regulating the practice of medicine and fixing a penalty for violation thereof are constitutional.

We come then to the question whether the plaintiff may recover under the allegations of the petition in this case, which clearly state a violation of law and seek a judgment therefor.

While the practice of medicine without a license is prohibited under penalty the contract for professional services of an unlicensed physician is void because of the illegal consideration. State Bank v. Lawrence, 177 Ind. 515,96 N.E. 947, 42 L.R.A. (N.S.), 326; 30 A.L.R., 880 and 881, and numerous cases cited.

We refer to Volume 31 Ohio Jurisprudence, page 498, and quote from Section 262:

"Under early statutory provisions, persons who were neither members of medical societies, nor licensed were deprived of the aid of the law in the collection of their debts for services as physicians or surgeons, contracts for such services under such circumstances having been regarded as void. This statute was adjudged a constitutional and valid enactment. Moreover, the repeal of such statutory provision did not revive such a contract for services performed during the existence of the law, and enable a physician or surgeon to recover for the services after the repeal. However, a penalty imposed by a statute implies a prohibition, and a contract founded on a violation of a penal statute is void though not expressly declared so by the statute. Hence when a statute merely makes it a misdemeanor to practise medicine without complying with certain requirements, a practitioner who violates the statute cannot recover for his services."

See also Nichols v. Poulson, 6 Ohio, 305, 21 R.C.L., 417-418.

For the foregoing reasons, and upon the basis of the foregoing authorities, we find that the petition in this case did not state a cause of action, and that the demurrer filed thereto by the defendant below was properly sustained by the trial court.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

CARTER and ROBERTS, JJ., concur.