Bell Dental Laboratory, Inc. v. Walton

• Decision Date: 14 November 1957
• Docket Number: No. 13138,13138
• Parties: BELL DENTAL LABORATORY, Inc., Appellant, v. Hon. Dan WALTON, District Attorney of Harris County, Texas, Appellee.
• Court: Texas Court of Appeals

Page 342

307 S.W.2d 342

BELL DENTAL LABORATORY, Inc., Appellant, v. Hon. Dan WALTON, District Attorney of Harris County, Texas, Appellee.

No. 13138.

Court of Civil Appeals of Texas, Houston.

Nov. 14, 1957.

Rehearing Denied Dec. 5, 1957.

E. B. Votaw, Vidor, for appellant.

Joe S. Moss, Houston, for appellee.

WOODRUFF, Justice.

This is an appeal by Bell Dental Laboratory, Inc., plaintiff in the trial court, from an order dated February 25, 1957, entered by the 11th District Court of Harris County, Texas, refusing to grant appellant a temporary injunction restraining Hon. Dan Walton, the District Attorney of Harris County, Texas, from preferring or prosecuting any criminal charge against any officer or employee of appellant based upon Subsec. (5) of Article 754a, Texas Penal Code, Article 754a(5), Vernon's Ann.P.C.

In its first amended original petition, appellant alleged that it is a corporation chartered under the laws of Texas to manufacture and sell dentures and dental appliances and to purchase and sell goods, wares and merchandise used for such business. It was further alleged that since receipt of its charter on January 6, 1955, appellee, Dan Walton, as District Attorney of Harris County, persisted in filing and prosecuting, or causing the same to be done by his employees, criminal proceedings against appellant's officers and employees based on Subsec. (5) of Article 754a, T.P.C., which appellant alleged to be unconstitutional and void.

It was further alleged that E. H. Mayo, being the same person as Evans Mayo, was president and a director of appellant, and that H. (Howard) A. Demieville was a director and one of its employees; that two charges had been filed against Demieville charging him with practicing dentistry, and one against Mayo; that Demieville was found not guilty on one charge, the other being dismissed, and that the case against Mayo was set for trial for March 26, 1957. It was further alleged that the persistent efforts of appellee to prosecute its officers and employees under an unconstitutional law had resulted in irreparable injury and damage to appellant's vested property rights. Appellant averred that a justiciable controversy existed and upon a final hearing under Article 2524-1, Vernon's Ann.Texas Civ.St. the 'status, rights and other legal relations as between said parties be declared and adjudicated in respect to the validity, construction and application of the statute.'

Appellant prayed for a temporary injunction restraining appellee from any prosecution under Article 754a, Subsec. (5), T.P.C., during the pendency of the suit and prayed that on final hearing judgment be rendered for plaintiff in accordance with the pleadings and that Subsec. (5) of Article 754a, T.P.C., be declared void and the temporary injunction be made permanent.

Upon the hearing of the application for temporary injunction, appellant offered in evidence its charter filed in the office of the Secretary of the State of Texas on January 6, 1955, showing the purpose clause to be as alleged in its petition; that the capital stock of $1,000 was fully subscribed and paid in, and that E. H. Mayo, H. A. Demieville, and M. Coggin were the incorporators and directors thereof.

There was also offered in evidence a verified copy of Article 13 of appellant's bylaws, passed on January 7, 1955, the day after the filing of the charter, which read as follows:

'Article 13. It shall be the duty of the President of the Company to immediately place in full force and effect all rules and regulations necessary or required in order to insure that all officers, agents and employees of the Corporation shall strictly comply with the laws of Texas (both civil and criminal) pertaining to the practice of dentistry in this state in the conduct of the Company's business. In connection therewith, no work or services of whatsoever nature shall be performed or accomplished by the Company, or by any of its officers, agents or employees, unless and until the applicant therefor shall execute an affidavit stating under oath a truthful account of the precise nature and extent of such work or services so performed.'

Copies of two informations, dated May 24, 1955, charing Howard Demieville with the unlawful practice of dentistry in that he undertook 'to fit, adjust and substitute in the human mouth * * a dental appliance, structure and denture' without 'a license from the State Board of Dental Examiners', were also offered in evidence. In one of these informations the offense was alleged to have occurred on September 14, 1954, almost four months before the appellant was incorporated.

Appellant also offered in evidence an information dated November 21, 1956, charging Evans Mayo with the same offense, alleged to have been committed on July 10, 1956, together with a judgment of acquittal in one of the cases against Demieville.

H. A. Demieville was offered as a witness and testified that he had been employed by appellant since, its incorporation, and at the time of trial was a branch manager of its Corpus Christi office; that he was a dental technician; that while technicians ordinarily get $60 to $75 per week, Bell starts its at $100 per week because 'they are a bit leery of going to work' for Bell on account of the prosecutions. He testified that every customer had to 'abide by that by-law' No. 13. Each customer is required to sign an affidavit that the dentist is actually doing the impression work and he is furnishing the impression and none of their (appellant's) technicians are doing any work on the customer's mouth. When asked to sign the affidavit, so Demieville testified, about one-third of them leave, thus decreasing the company's business about one-third. The witness further stated that Bell had a gross income of between $50,000 and $60,000 in 1955, and in 1956, but failed to make a profit either year.

E. H. Mayo, the appellant's president, had one charge pending against him, so Demieville stated. He further testified that at the time of the trial four complaints had been filed against him, two of which had been dismissed. He stated that neither he nor E. H. Mayo had a license to practice dentistry.

Referring to the procedure followed in appellant's place of business, Demieville stated that when people who need dentures come in, they are asked if they would like to have their work done by Bell Dental Laboratory. If so, they have to have their dentist make 'the impression' and do the 'fitting work.' He testified that the appellant does not employ dentists but there is one who has his office on the premises. If a person wants to go to him, they are agreeable; if not, he can go anywhere in the city to have the impression work done and bring it to them to have the dentures fabricated; and approximately one out of three 'when they find this arrangement, get up and leave without signing the affidavit.' They are told they will have to sign the affidavit either immediately before or after 'the dentist has given them an examination.' Everyone is required to sign the affidavit, that is company policy--so Demieville testified.

There was no testimony that any person in the employ of Bell Dental Laboratory, Inc., other than Mayo and Demieville, had had any charges preferred against them.

At the conclusion of the hearing, the trial court denied appellant's application for temporary injunction, and this appeal is taken from that ruling.

Appellant assigns as error on the part of the trial court an abuse of discretion in refusing to grant the application for temporary injunction because, so it asserts, Subsec. (5) of Article 754a, T.P.C., is void and that the trial court could not base his refusal to grant a temporary injunction upon a consideration of the evidence adduced upon the hearing.

Its position is, therefore, that if, under the law, a successful attack can be made on the constitutionality of Subsec. (5) of Article 754a, T.P.C., appellant would be entitled to the issuance of a temporary injunction as a matter of law.

The general rule is well established in this State that the granting or refusing of a temporary injunction is within the sound discretion of the trial court, and that action will not be disturbed on appeal unless it is clearly shown from the record that there has been an abuse of such discretion. Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964. Appellant has cited no case in which a trial court's action in refusing a temporary injunction under these circumstances has been held to be an abuse of discretion. However, ...