United Dentists Inc v. Commonwealth

• Decision Date: 22 March 1934
• Citation: 173 S.E. 508
• Court: Virginia Supreme Court
• Parties: UNITED DENTISTS, Inc. v. COMMONWEALTH.

173 S.E. 508

UNITED DENTISTS, Inc.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 22, 1934.

Error to Circuit Court of City of Norfolk.

Action by notice of motion by the Commonwealth against the United Dentists, Incorporated. To review an adverse judgment, defendant brings error, and plaintiff flies a motion to dismiss.

Motion overruled. Judgment reversed and a new trial awarded.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Daniel Coleman and Nathaniel T. Green, both of Norfolk, for plaintiff in error.

John R. Saunders, Atty. Gen., Venable, Miller, Pilcher & Parsons, of Norfolk, for the Commonwealth.

CAMPBELL, Chief Justice.

[I] We are met at the outset of this case with a motion to dismiss, on the ground that the writ of error was improvidently awarded. It is contended in the petition for the writ of error that, by virtue of section 3831 of the Code, petitioner is entitled to a writ as a matter of right. Whether or not petitioner was entitled as a matter of right to a writ of error becomes immaterial, in view of the fact that a justice of this court, during the vacation of the court, granted a writ of error to the judgment complained of, and the case is on the docket of the court in the usual course.

The question is a moot one, and any expressions in regard thereto would be obiter dicta. The motion to dismiss is therefore overruled.

This action was brought to revoke the charter of the United Dentists, Incorporated (hereafter called defendant), on the ground that it had willfully and habitually misused and abused its corporate functions.

As the first assignment of error challenges the right of the trial court to enter upon a trial of the case upon the merits, under the circumstances hereafter adverted to, we will dispose of it before entering upon a discussion of the subsequent assignments.

When the case was called for trial upon the issue joined, the commonwealth moved for an exclusion of all the witnesses. Counsel for the defendant resisted the motion on the ground that, as the defendant was a corporation, it was entitled to have present during the trial its president, E. T. Payne, and its secretary and treasurer, Mrs. Elizabeth D. Payne. The court ruled that only one officer of the corporation was entitled to remain in the courtroom, and thereupon counsel elected to have Mrs. Payne remain.

Section 4906 of the Code confers upon the trial court the power, when in its sound discretion it becomes necessary, to exclude from the courtroom during the progress of a criminal trial all persons whose presence is not deemed necessary. While the presence of witnesses during the trial of a civil action is not controlled by statute, there can be no doubt that the trial court, in the exercise of a sound discretion, has the power to limit the number of representatives each litigant is entitled to have remain in court during the examination of witnesses. Especially is this true when the requested representative is to be introduced as a witness. Were the rule otherwise, it would give to the litigant whose witnesses remain in court the great advantage of having his witnesses cognizant of the testimony of each other, and the hazard of contradiction would be greatly minimized.

It is true, of course, that a corporation can be present in court only by representation through its officers, or one of them. But it does not follow that a corporation is entitled to stand upon a different footing from any other litigant. In our opinion, the rule is correctly stated in Cyclopedia of Law and Procedure, vol. 3S, p. 1371, in the following language:

"Where the party is necessarily absent his agent whose presence is required by counsel on account of his knowledge of the case, should not be excluded. Where defendant is a corporation it is not error to refuse to permit an officer or employee thereof to remain for the purposes of advising with counsel, unless it appears that he has been put in control of the litigation. And where two officers of a corporation are witnesses, one of them may be put under the rule."

There is no merit in the first assignment of error.

Under the provisions of a statute since repealed, the defendant was, on the 21st day of October, 1929, granted a certificate of incorporation by the Corporation Commission of Virginia. E. T. Payne was named president; his wife, Elizabeth Dudley Payne, was named secretary and treasurer, and, together with L. B. Bowie, they constituted the board of directors. The purposes for which the corporation was formed are set forth in the charter as follows:

"Purposes: The purposes for which this corporation is formed are to employ competent licensed dentists to engage in the business of dentistry, and surgical dentistry; to perform dental operations of all kinds; to diagnose and treat diseases of lesions of the oral cavity, teeth, gums and maxillary bones; to extract teeth; to prepare and fill cavities in teeth; to correct malposition of teeth orjaws; to engage in the manufacture and sale of pyorrhea remedies, tooth brushes, paste, mouth wash, and all forms of chemical liquids necessary for the good health of the teeth and gums; and setting of artificial teeth; to own and operate a dental laboratory; and to do any and all acts and incidental tilings not herein specifically enumerated that may be necessary, desirable, and convenient for the purpose of the corporation above set out. * * *"

Section 1640 of the Code of 1919, as amended by Acts 1930, c. 184, p. 479, defines the practice of dentistry as follows:

"Any person shall be deemed to be practicing dentistry, who uses the word dentist, dental surgeon, the letters DDS, DMD, or any letters or title in connection with his or her name, which in any way, represents him or her as engaged in the practice of dentistry, or any branch thereof, or who advertises or permits to be advertised by sign, card, circular, handbill, newspaper or otherwise that he or she can or will attempt to perform dental operations of any kind, or who shall diagnose, profess to diagnose, or treat or profess to treat any of the diseases or lesions of the oral cavity, teeth, gums or the maxillary bones or shall extract teeth, or shall correct malpositions of the teeth or jaws, or shall take impressions, or shall supply artificial teeth as substitutes for natural teeth, or shall place in the mouth and adjust such substitutes, or do any practice included in the curricula of recognized dental colleges, or administer or prescribe such remedies, medicinal or otherwise, as shall toe needed in the treatment of dental or oral diseases, or shall use an X-ray for dental treatment or dental diagnostic purposes. * * *"

Section 3831 of the Code provides that any corporation which shall willfully and habitually misuse any essential corporate function shall thereby forfeit its charter. Proceedings to forfeit the charter of a corporation under the provisions of that section may toe instituted by the Attorney General in the name of the commonwealth.

The main allegations of the notice of motion relied upon by the Attorney General...