Dvorine v. Castelberg Jewelry Corp.

• Decision Date: 10 June 1936
• Docket Number: 51.
• Citation: 185 A. 562,170 Md. 661
• Parties: DVORINE ET AL. v. CASTELBERG JEWELRY CORPORATION.
• Court: Maryland Court of Appeals

185 A. 562

170 Md. 661

DVORINE ET AL. v. CASTELBERG JEWELRY CORPORATION.

No. 51.

Court of Appeals of Maryland

June 10, 1936

Appeal from Circuit Court No. 2 of Baltimore City; J. Frank Supplee Jr., Judge.

Suit by Dr. Israel Dvorine and others against the Castelberg Jewelry Corporation, wherein defendant filed a demurrer. From a decree dismissing the bill, plaintiffs appeal.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Edward L. Ward, of Baltimore (Harold Kohn, of New York City, and Gordon S. Duvall, of Baltimore, on the brief), for appellants.

Charles McH. Howard, of Baltimore (Philip Sachs, of Baltimore, on the brief), for appellee.

Herman M. Moser, of Baltimore, amicus curiæ in behalf of Retail Merchants Ass'n of Baltimore, Inc.

OFFUTT Judge.

The Castelberg Jewelry Corporation carries on a merchandising business in Baltimore in connection with which it maintains stores for the sale of jewelry, silverware, optical goods ornaments, and other wares of the same general character. As a part of its business it conducts a branch or department for the sale of eyeglasses, and to stimulate that part of its business it furnishes optometrical service to such of its patrons as desire it, and for that purpose employs a registered optometrist, and supplies him with the instruments and mechanical appliances needed for that work as well as with an office in which it may be done. In the course of the service the optometrist examines any patron presenting himself for that purpose and informs him of the result of the examination. If as a result of it glasses are found to be needed, the patron may purchase them from the corporation, or from some other person, or he may purchase them from the corporation with or without a prescription. Where the glasses are not bought from the corporation, a charge is made for an examination; if glasses are bought from it, the charge for the examination is included in the price of the eyeglasses. But whenever a charge is made, whether for an examination or for eyeglasses or lenses, it is made in the name of the corporation, and the corporation informs the public through advertisements in the public press and otherwise that it specializes in "the scientific fitting of modern glasses and frames" and offers "consultations and examinations without charge." The actual physical work of the examination is done by a registered optometrist, who, as a result of it, determines whether any glasses are needed and, if they are, the particular kind which are required, their measurements and shape.

As a necessary consequence of that course of business, the company receives any profits and bears any losses which may result from the examinations and sales of eyeglasses, but the patron nevertheless is assured of the service of a competent and skilled optometrist. Or, stated in another way, the company supplies the service, and in that sense practices optometry in making it available to its patrons, but the service is actually performed by a natural person who is registered and licensed by the state to practice the art or science of optometry.

The basic act regulating the practice of optometry in this state is chapter 652 of the Acts of 1914, which created the "Maryland State Board of Examiners in Optometry." The essential purpose of that statute was to limit the practice of optometry in this state to persons who were found to possess the skill, competence, and training needed for the examination of the human eye and the prescription of suitable lenses to correct errors in vision without detriment to the public health. In addition to providing for examinations to insure the requisite competence, the statute provides for the registration of persons found to be qualified to practice the art and makes it unlawful for persons other than physicians or surgeons to practice it in this state without first having been registered as optometrists.

It defines the practice of optometry as "the employment of any means, except the use of drugs, medicine or surgery, known to the science of Optics for the purpose of determining, correcting and prescribing by means of lenses for any optical condition existing in the human eye, and also the employment of any means, except the use of drugs, medicine or surgery, for the purpose of detecting diseased conditions." Code, art. 43, § 315.

It also prohibits the use by optometrists of "the title M.D., Surgeon, Doctor, Physician, Eye Specialist, Eye-Sight Specialist, Oculist, Opthalmologist, Doctor of Opthalmology, Doctor of Optometry, Doctor of Optics, or any title containing the word Doctor or the abbreviation Dr., or any word or abbreviation that will or can convey the impression that he is engaged in the treatment of diseases or injuries of the human eye, or make use of drugs, medicine or surgery, in the practice of Optometry," Code Supp.1935, art. 43, § 326, although they may use the title "Doctor of Optics" or "Doctor of Optometry," and the optometrist must use the word "Optometrist" in connection with his name wherever his name appears. An optometrist who is also a physician and surgeon is not affected by the statute, and may use the title of his profession, nor does it apply to persons who merely sell eyeglasses as merchandise nor to opticians.

The Maryland Association of Optometrists is a corporation formed to further the interests of optometry, and the Maryland State Board of Examiners in Optometry is an administrative agency created by chapter 652 of the Acts of 1914 and charged with the administration of that statute. Israel Dvorine, B. Woodward Hazel, J. Fred Andreae, Martin Roos, and Ralph A. Highbarger at present constitute the board. On August 14, 1935, these five persons, as individuals and as constituting the Maryland State Board of Examiners in Optometry, herein called the Board of Examiners, and the Maryland Association of Optometrists, brought this suit against the Castelberg Jewelry Corporation to secure an injunction restraining it (a) "from engaging in the practice of optometry in the State of Maryland, either directly in its corporate or trade name, or indirectly by hiring licensed or registered optometrists to engage in said practice for it at its place of business or elsewhere," and (b) "from holding itself or themselves out as having the right to practice optometry, and from advertising that it has the right to prescribe lenses and make examinations of the eyes, and from prescribing, fitting, adjusting or selling lenses for correcting or aiding the optical condition of human eyes, and from employing, engaging or contracting with any licensed or registered optometrist to carry on or conduct the practice of optometry for it at its said place of business or elsewhere."

In their bill of complaint, in addition to the facts stated above, they allege that under its charter the defendant was authorized "to manufacture, buy, sell, rent, and otherwise deal in jewelry, silverware, ornaments, novelties, optical goods, as well as goods, wares and merchandise of every class and description. * * * To carry on any other business which may be calculated directly or indirectly to effectuate the aforesaid objects or any of them, or to facilitate the transaction by the corporation of the aforesaid businesses, or any part thereof, or the transaction of any other business which may be calculated directly or indirectly to enhance the value of its assets and property." It is further alleged that the defendant maintains an optical department which "is under the supervision and direction of an employee of the Defendant Corporation, who is a licensed or registered optometrist of the State of Maryland, and in which Optical Department the Defendant Corporation through its said agent or employee has been and now is continually determining, testing and examining the optical and diseased conditions of the eyes of persons at its said place of business, and is attempting to correct such optical conditions by means of lenses prescribed and sold to said persons with such defective and diseased eyesight, for and on behalf of said Defendant Corporation; and the Public has been and is now being continuously solicited by the Defendant Corporation by extensive advertisements inserted in the daily newspapers published in Baltimore City and by divers other ways and means, to call at the jewelry store conducted by said Defendant Corporation at the aforesaid address, to have their eyes tested and examined, and consultations held with said registered or licensed optometrists employed by said Defendant Corporation, without charge and prescribing by means of lenses for optical conditions of the eyes, and for the further purpose of having the public purchase such lenses as are prescribed by its said employee to correct and overcome such optical conditions." They further state that the defendant is unlawfully practicing optometry and "exploiting commercially" the certificate of registration issued to the registered optometrist employed by it, and that by such "illegal practice of optometry" the defendant "is building up a tremendous volume of business in the sale of prescribed lenses and eyeglasses, for the correction of optical conditions of the eyes, which unlawful acts are highly detrimental to all licensed practicing optometrists in the State of Maryland, the larger portion of whom are members of said Maryland Association of Optometrists, Incorporated; and violates the duties imposed by law upon the Maryland State Board of Examiners in Optometry."

To that bill the defendant filed a combined answer and demurrer. In its answer it in effect admitted the allegations of material fact made in the bill, but denied that it was engaged in the practice...