Green v. Blanchard

• Decision Date: 24 March 1919
• Docket Number: 154,179
• Citation: 211 S.W. 375,138 Ark. 137
• Parties: GREEN v. BLANCHARD
• Court: Arkansas Supreme Court

211 S.W. 375

138 Ark. 137

GREEN v. BLANCHARD

No. 154,179

Supreme Court of Arkansas

March 24, 1919

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

STATEMENT OF FACTS.

This is a proceeding by certiorari in the circuit court to set aside an order of the Board of Dental Examiners of this State revoking the certificate of Dr. F. A. Blanchard authorizing him to practice dentistry.

The proceeding brings into question an act of the Legislature passed in 1915 regulating the practice of dentistry and dental surgery in this State. Acts of 1915, p. 178. The power to grant licenses to applicants to practice dentistry in this State and various other powers are conferred upon the State board by the act. Among others, the power to revoke the certificate is conferred by section 7 of the act.

On the 27th day of February, 1918, the Arkansas State Board of Dental Examiners issued a citation to Dr. F. A. Blanchard to appear before it on the 9th day of April, 1918, at the Senate chamber in the State Capitol in the city of Little Rock and there to show cause, if any there be, why the license heretofore issued to him by said board should not be revoked under the provisions of sections 7 and 8 of the act.

After hearing the testimony introduced, the board found Dr Blanchard guilty of violation of the provisions of the act above referred to and entered an order revoking his license. At the request of Dr. Blanchard the findings of the board were stated by its president as follows: "The painless dentist; sixteen years' written guarantees were not given--the experts--wholesale cost did not enter into the transaction."

The facts are as follows: In February, 1918, and for several months prior thereto, Dr. F. A. Blanchard was practicing dentistry in the city of Little Rock and employed several assistants in his office. He advertised his business in the daily papers and an advertisement in his name dated March 10 1918, contained the following: "Blanchard's Dentists are Specialists. Each Thoroughly Efficient in His Own Line. Dental work is divided into parts at Blanchard's. If a tooth is to be pulled, you are attended by an expert extractor who understands this thoroughly. If a crown is to be made, an expert laboratory man does this, and so on. You are thus assured of the work as good as the best."

Another advertisement contained the following:

"Dental specialists, who attend you here. Each a specialist in his line, thus giving you the greatest dental skill.

"Dr F. A. Blanchard, sixteen years' continuous practical experience.

"Dr C. N. Cantrell, thoroughly efficient in all dental work.

"Dr. M. E. Ludwick, expert crown and bridge workman.

"Dr. W. D. Flack, expert extractor and bridge workman.

"Dr. F. L. Merck, chief of laboratory."

"Sixteen years' written guarantee given to every patient."

"These dentists are past masters in their respective lines, busily at work practicing the latest science of dentistry in office without a superior in all America, as far as modern equipment is concerned. Offices fitted with all modern mechanical and other devices, perfected to add to the pleasure and comfort of all patients."

Still another is as follows:

"Highest efficiency. The gentlemen operators and mechanical dentists in my office are time-tried and proven men of highest efficiency, otherwise they would have no place in my office. The work they do for you will be done thoroughly and conscientiously and will be backed by my guarantee, which I do not fail to make good. It is my honest opinion that we give more and better work for the money than any dental parlor or parlors in the United States. Our supplies of all kinds are purchased in great quantities at lowest wholesale cost, a fact that redounds to the advantage of our patients and makes possible our present scale of low prices."

There was also evidence on the part of the board tending to show that neither Dr. Blanchard nor his assistants were experts or specialists in dentistry.

A young man seventeen years old testified for the board that he worked for Dr. Blanchard from the 4th to the 9th day of March, 1918. He worked in the laboratory on plates for false teeth and stated that he was the only laboratory man Dr. Blanchard had that week. On cross-examination he admitted that he did not make any crowns or attempt to make any. His only work was working on plates for false teeth, polishing them, etc. He also admitted that there were two operators who did the most difficult part of the laboratory work. He testified that there were three assistants in the office who did the crown work while he was there.

Several of the advertisements of Dr. Blanchard contained the following: "I have absolutely minimized pain from dental work."

It was also shown that Dr. Blanchard issued receipts to his patients upon which were the printed words, "painless dentists." These receipts also had printed on them the words, "United Dental Company." The printed words were marked out with a stamp.

According to the testimony of Dr. Blanchard, these were some old receipts which he had when he was practicing in New Orleans, Louisiana. He was delayed in getting receipts which he had ordered for his office here and only used these receipts until he could get others. He plainly marked out with a stamp the words, "painless dentist" and "United Dental Company." The receipts were not used to advertise his business at all. On the back of the receipts used by Dr. Blanchard here are the following words: "We do good work cheap and for cash. If any work is defective, kindly call our attention to it, and we will gladly make it good without extra charge. All complaints must be made to Dr. Blanchard, and if fault is found in the work, will gladly repair same for you without argument. "Dr. F. A. Blanchard,

"By Flack."

It is also shown that the assistants employed by Dr. Blanchard were experts and specialists as advertised by him. One witness testified that Dr. Blanchard repaired a plate for her and that she had three teeth extracted at his office absolutely without pain; that she did not know what anesthetic was applied; that she had had work done by other dentists and that they hurt her much more; that the work that was done for her in Dr. Blanchard's office was very satisfactory.

Upon the hearing of the writ of certiorari in the circuit court, judgment was rendered setting aside the order of the board revoking the license of Dr. Blanchard.

From the judgment rendered the board has duly appealed to this court.

Judgment affirmed.

House, Rector & House, for appellants.

1. There was ample evidence of a substantial character to justify the findings of the board and it was error to set aside the order revoking appellee's license. 126 Ark. 125. The decision of a board upon a question of fact is final if made in good faith. 1 L. R. A. (N. S.) 811; 17 Id. 439; 43 Id. 911. The courts will not disturb the findings of a board if there is substantial evidence to sustain its findings. Cases supra. All presumptions are in favor of its findings.

2. The law had been violated by appellee by the publication and circulation of fraudulent and misleading statements in his advertisements as to skill and methods. Act 56, Acts 1915, §§ 7-13. He advertised painless dentistry.

3. He falsely advertised also as to giving written 16-year guarantee to each patient and that he had trained experts, specialists, and as to wholesale cost of supplies. 65 A. 263; 28 R. I. 3; 161 S.W. 1169; 51 L. R. A. (N. S.) 958; 162 Id. 796; 157 Ky. 123; 116 N.W. 528; 119 Id. 17; 135 S.W. 631; 129 P. 1128; 180 S.W. 538; 154 P. 56; 158 Id. 982; 43 L. R. A. (N. S.) 911; 142 P. 505.

The action of the board was done in good faith and upon sufficient evidence under the act. The writ should have been dismissed and the judgment should be reversed and the findings of the board sustained.

Mehaffy, Reid, Donham & Mehaffy and J. A. Tellier, for appellee.

1. The board exceeded its jurisdiction. The action of the board in refusing to make the charges more specific, definite and certain was arbitrary and unwarranted and deprived appellee of a fair and just trial. He was convicted on charges that were not made. 128 Ark. 239; 157 Ky. 129.

2. The evidence before the board furnished no substantial basis for revoking his license. No charges against Dr. Blanchard's character were made. It is only claimed that he violated that portion of the act relating to advertising. Act 56, Acts 1915. But the findings of the board are not sustained by any substantial evidence.

3. Certiorari is the proper remedy. Kirby's Digest, sections 1315-16; 126 Ark. 125, 135-6. The evidence was not legally sufficient, 1 Jones on Ev. 906; 97 Ark. 442; 57 Id. 461-468; 7 Words and Phrases 6762; 22 S.E. 142-3; 94 Ga. 804.

4. Appellee did not advertise to practice dentistry without pain but only to absolutely "minimize pain" and there was no violation of the act. The receipts were not advertisements to induce public patronage. His advertisements as to experts and specialists did not violate the act. As to definition of experts, see 3 Words and Phrases, p. 2594-5-6; 71 N.Y. 453, 460; 82 N.Y.S. 1064-7; 84 A.D. 628; 65 P. 595-6; 39 Ore. 26; 62 L. R. A. 543; 21 S.W. 737-8; 114 Mo. 335; 90 N.W. 10, 11; 24 P. 506; 5 R. I. 243. "Specialist," see 7 Words and Phrases 6596; 64 N.E. 38; 29 Ind.App. 456.

See also 116 N.W. 528; 119, Id. 17; 135 S.W. 631; 129 P. 1128; 43 L. R. A. (N. S.) 911; 151 P. 56; 158 Id. 983-4.

5. The statute is unreasonable and too uncertain and indefinite. It is penal also in its nature. 7 A. & E. Ann. Cases 750; 63 S.W. 785; 253 Mo. 284-5.

6. No one was deceived or defrauded. Cases supra; 28 R. I. 3-4-5, etc.

HART J. MCCULLOCH, C. J.,...