Massachusetts Soc. of Optometrists v. Waddick

• Decision Date: 21 March 1960
• Parties: , 90 A.L.R.2d 1 MASSACHUSETTS SOCIETY OF OPTOMETRISTS et al. v. James H. WADDICK, Jr. MASSACHUSETTS SOCIETY OF OPTOMETRISTS et al. v. George HATFIELD, Jr., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 394

165 N.E.2d 394

340 Mass. 581, 90 A.L.R.2d 1

MASSACHUSETTS SOCIETY OF OPTOMETRISTS et al. v. James H. WADDICK, Jr.

MASSACHUSETTS SOCIETY OF OPTOMETRISTS et al. v. George HATFIELD, Jr., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 6, 1959.

Decided March 21, 1960.

James D. St. Clair, Boston (Blair L. Perry, Boston, with him), for plaintiffs.

Samuel Abrams, Boston (George S. Abrams and Ruth I. Abrams, Boston, with him), for defendants.

Joseph G. Crane, Boston, by leave of court, submitted a brief as amicus curiae.

Before WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WILLIAMS, Justice.

The plaintiffs in these suits are Arthur F. March, Junior, a registered optometrist practising in Concord, and Massachusetts Society of Optometrists, a corporation with a membership of more than 500 registered optometrists comprising approximately 75 percent of the registered optometrists practising in Massachusetts. The defendant in one case is James H. Waddick, Junior, a registered optician, but not a registered optometrist, physician or surgeon, doing business in Boston under the name Dispensing Contact Lens Center for Fitting and Information. The defendants in the other case are George Hatfield, Junior, also a registered optician, but not a registered optometrist, physician or surgeon, doing business in Boston under the name 'Vent-Air Contact Lens Specialists,' and New England Contact Lens Specialists Corp., a corporation with a usual place of business at the same address as that of the codefendant. There is no record of service on the corporate defendant. Except for references to this defendant in the Hatfield case the bills of complaint in the two cases are the same. In each it is alleged that the defendant is engaged in the unlawful practice of optometry by prescribing and adapting contact lenses for the correction, relief and aid of the visual functions and that his activity constitutes a nuisance which endangers the public and threatens it with substantial and irreparable harm. This activity does substantial and irreparable harm to the plaintiffs 'by interfering with their advantageous relationships with the general public and diminishing the reputation of registered optometrists, including the * * * [plaintiffs] with the general public.' It is also alleged that the defendant publishes in newspapers of wide circulation and in circulars advertisements including the statements 'Call or come in for free information,' 'Lifetime prescription changes at no charge,' and other statements of like import, in violation of G.L. c. 112, § 73A.

Each defendant demurred on the grounds that the bill stated no cause of action entitling the plaintiffs to relief and that they had no standing to maintain the suit. The demurrers were sustained and the cases reported to this court.

The question for decision is whether registered optometrists are entitled, either individually or collectively without proof of special damage, to an injunction against the illegal practice of optometry by persons who are not registered and are not physicians or surgeons. Although we entertained a similar bill in McMurdo v. Getter, 298 Mass. 363, 10 N.E.2d 139, this problem was not presented since facts were alleged from which actual damage to the plaintiff was inferable and the parties agreed that 'the sole question to be decided is whether or not, on the facts set forth herein, the defendants are illegally engaged in the practice of optometry.'

Courts have differed widely in dealing with the right to equitable relief of persons holding licenses similar in character to those possessed by the plaintiffs. See Callmann, Unfair Competition and Trade-Marks (2d ed.) § 63.3; 11 So.Cal.L.Rev. p. 476; 32 Notre Dame Lawyer, p. 311. Injunctions have been granted on the theory that by the unlicensed practice of a defendant a property right of the plaintiff has been invaded, or that the activity of the defendant constitutes a public nuisance. See Eisensmith v. Buhl Optical Co., 115 W.Va. 776, 178 S.E. 695; Ezell v. Ritholz, 188 S.C. 39, 46-50, 198 N.E. 419; Neill v. Gimbel Bros., Inc., 330 Pa. 213, 199 A. 178; Dworken v. Apartment House Owners Ass'n, 38 Ohio App. 265, 176 N.E. 577; Seifert v. Buhl Optical Co., 276 Mich. 692, 700, 268 N.W. 784; Burden v. Hoover, 9 Ill.2d 114, 137 N.E.2d 59. Equitable relief has been refused by courts holding that no property right has been encroached upon or imperilled and no nuisance created. New Hampshire Board of Registration in Optometry v. Scott Jewelry Co., 90 N.H. 368, 9 A.2d 513; MacBeth v. Gerber's Inc., 72 R.I. 102, 48 A.2d 366; Delaware Optometric Corp. v. Sherwood, Del., 128 A.2d 812. New Jersey State Bar Ass'n v. Northern New Jersey Mortgage Associates, 22 N.J. 184, 123 A.2d 498. It is stated in Restatement, Torts, § 710: 'One who engages in a business or profession in violation of a legislative enactment which prohibits persons from engaging therein, either absolutely or without a prescribed permission, is subject to liability to another who is engaged in the business or profession in conformity with the enactment, if, but only if, (a) one of the purposes of the enactment is to protect the other against unauthorized competition, and (b) the enactment does not negative such liability.'

The object of our statutes, G.L. c. 112, §§ 66-73B, as amended, wherein the practice of optometry is defined and the practice restricted to those found properly qualified after examination by the board of registration in optometry (see G.L. c. 13, § 16) is to promote public health and welfare by protecting from improper treatment persons suffering from defects of the eye. Commonwealth v. Houtenbrink, 235 Mass. 320, 323, 126 N.E. 669; Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 148-149, 166 N.E. 558. See Lawrence v. Board of Registration in Medicine, 239 Mass. 424, 428-429, 132 N.E. 174; Commonwealth v. Ferris, 305 Mass. 233, 25 N.E.2d 378; Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 583, 27 N.E.2d 1; Flynn v. Board of Registration in Optometry, 320 Mass. 29, 34, 67 N.E.2d 846, 166 A.L.R. 571; New Jersey State Bar Ass'n v. Northern New Jersey Mortgage Associates, 22 N.J. 184, 195, 123 A.2d 498.

Their justification, similarly to that for the statute limiting the right to practice law to members of the bar (G.L. c. 221, § 46A), is not in the protection of the registrants from competition, but in the protection of the public from being...