McMurdo v. Getter

Citation298 Mass. 363,10 N.E.2d 139
PartiesMcMURDO v. GETTER et al.
Decision Date20 September 1937
CourtUnited States State Supreme Judicial Court of Massachusetts


Report from Superior Court, Worcester County; Burns, Judge.

Suit in equity by Raymond McMurdo against John R. Getter and others, wherein Albert Barker intervened, to restrain defendants from practising optometry. Reported on agreed statement of facts, without decision.

Decree for plaintiff and intervener.

H. N. Silk, of Boston, for plaintiff.

G. B. Lourie and M. O. Talent, both of Boston, for intervener.

R. S. Bernard, of Boston, for defendants.

LUMMUS, Justice.

The plaintiff, a duly registered optometrist practising in Spencer, brought this bill ‘for his own benefit, for the benefit of other optometrists, and for the benefit of the public,’ to restrain the defendants, a firm of opticians in Worcester not physicians nor registered optometrists, from practising optometry in competition with the plaintiff and other optometrists without being registered under the statute. Another duly registered optometrist practising in Worcester was admitted as an intervening party plaintiff. The case was reported to us on agreed facts, without decision.

No questions is made of the right of the plaintiff and the intervenor to relief if the defendants are practising optometry illegally. Steinberg v. McKay (Mass.) 3 N.E.(2d) 23, and cases cited. Eisensmith v. Buhl Optical Co., 115 W.Va. 776, 178 S.E. 695. See also Frost v. Corporation Commission of Oklahoma, 278 U.S. 515, 521, 49 S.Ct. 235, 237, 73 L.Ed. 483.

The defendants offer for public sale eyeglasses, including frames and lenses, designed to correct defective vision, upon prescription by physicians and optometrists duly registered as practitioners in this Commonwealth. But almost all the prescriptions actually filled are those issued by a physician employed at a weekly salary by the defendants in their place of business. A customer who desires eyeglasses is taken to the physician, who examines the eyes and prescribes eyeglasses if needed. Other employees of the defendants assist the customer in selecting the shape and style of frames desired, grind and fit the lenses in accordance with the prescription of the physician, and then adjust the finished eyeglasses to the eyes of the customer. We conclude that the physician is the servant of the defendants (Stuart v. Sargent, 283 Mass. 536, 541, 186 N.E. 649), notwithstanding the fact that the defendants actually exercise no control over ‘the mode, manner or result of the examination of the eyes of the customer and the doctor is left free to exercise his own will [and] judgment and to use his own professional skill and methods in making such examination.’ McDermott's Case, 283 Mass. 74, 77, 186 N.E. 231;Deyette v. Boston Elevated Railway (Mass.) 7 N.E.(2d) 430. All questions of price and business policy are determined by the defendants. The customer pays nothing except a fixed price for the eyeglasses, which is the same whether he brings in his own prescription or obtains one from the physician employed by the defendants. That price is retained in whole by the defendants.

The defendants contend that they are not practising optometry illegally, although they are not registered optometrists and yet reap all the financial reward of a practise conducted by their servant who is a physician and as such entitled to practise optometry without registration.

The statute (G.L.[Ter.Ed.] c. 112, §§ 66-73, as amended by St.1934, c. 339, § 2), defines the practise of optometry as ‘the employment of any method or means, other than the use of drugs, for the diagnosis of any optical defect, deficiency or deformity of the human eye, or visual or muscular anomaly of the visual system, or the adaptation or prescribing of lenses, prisms or ocular exercises for the correction, relief or aid of the visual functions.’ Section 66. Before being registered as an optometrist, a person must possess certain educational qualifications and must pass an examination. Section 68. ‘Whoever, not being lawfully authorized to practise optometry, practises optometry, or holds himself out as a practitioner of, or as being able to practise, optometry, * * * or violates any other provision of,’ Sections 66-73, inclusive, ‘or any rule or regulation made under authority thereof,’ is punishable criminally, section 73A. The restrictions of the statute ‘shall not apply to physicians and surgeons lawfully entitled to practise medicine in the commonwealth,’ nor to persons who merely fill prescriptions, or sell eyeglasses as merchandise from permanently located and established places of business without the purpose of correcting defective vision. Section 73. Two other exceptions are mentioned later in this opinion. See also St.1937, C. 287, which takes effect on January 1, 1938.

The Fourteenth Amendment to the Federal Constitution and articles 1, 10, and 12 of the Declaration of Rights of the Constitution of this Commonwealth, protect every person in the enjoyment of his liberty and property. Within those words is included the right to engage in any lawful occupation (Holcombe v. Creamer, 231 Mass. 99, 108, 109, 120 N.E. 354;Lawrence v. Board of Registration in Medicine, 239 Mass. 424, 428, 132 N.E. 174;Matter of Sleeper, 251 Mass. 6, 19, 146 N.E. 269;Opinion of the Justices, 271 Mass. 598, 601, 171 N.E. 234;Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283), at least any not ‘affected with a public interest.’ Burgess v. Mayor & Aldermen of Brockton, 235 Mass. 95, 102, 126 N.E. 456;Opinion of the Justices, 247 Mass. 589, 143 N.E. 808;Liggett Drug Co., Inc. v. Board of License Commissioners of North Adams (Mass.) 4 N.E.2d 628;Charles Wolff Packing Co. v. Court of Industrial Relations of Kansas, 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 1103, 27 A.L.R. 1280;Tyson & Brother United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718, 58 A.L.R. 1236;Nebbia v. New York, 291 U.S. 502, 531 et seq., 552 et seq., 54 S.Ct. 505, 513, 522, 78 L.Ed. 940, 89 A.L.R. 1469. But that right, like many others, may be qualified or restricted under the police power,-the broad power, never precisely delimited, to take rational action for the protection of the public safety, health, morals, comfort and good order. Commonwealth v. Beaulieu, 213 Mass. 138, 99 N.E. 955, Ann.Cas.1913E, 1080;Commonwealth v. Libbey, 216 Mass. 356, 358, 103 N.E. 923, 49 L.R.A.(N.S.) 879, Ann.Cas.1915B, 659; Holcombe v. Creamer, 231 Mass. 99, 109, 120 N.E. 354;Nebbia v. New York, 291 U.S. 502, 527, 528, 54 S.Ct. 505, 511, 512, 78 L.Ed. 940, 89 A.L.R. 1469. Where the interests of the public might be endangered by the activities of incompetent or unreliable persons, one may be required to show his qualifications before engaging in a particular occupation and to obtain a license attesting his skill and character. Commonwealth v. Plaisted, 148 Mass. 375, 382, 19 N.E. 224,2 L.R.A. 142, 12 Am.St.Rep. 566;Commonwealth v. Roswell, 173 Mass. 119, 53 N.E. 132;Commonwealth v. Beaulieu, 213 Mass. 138, 99 N.E. 955, Ann.Cas.1913E, 1080;Commonwealth v. McGann, 213 Mass. 213, 216, 100 N.E. 355;Kilgour v. Gratto, 224 Mass. 78, 81, 112 N.E. 489;Commonwealth v. Solcum, 230 Mass. 180, 190, 119 N.E. 687;Opinion of the Justices, 282 Mass. 619, 626, 627, 186 N.E. 490;General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 189, 193 N.E. 799;Nebbia v. New York, 291 U.S. 502, 528, 54 S.Ct. 505, 512, 78 L.Ed. 940, 89 A.L.R. 1469.

The requirement of license or permit before engaging in practise has been held constitutional as to physicians (Lawrence v. Board of Registration of Medicine, 239 Mass. 424, 132 N.E. 174;Davis v. Board of Registration in Medicine, 251 Mass. 283, 146 N.E. 708;Crane v. Johnson, 242 U.S. 339, 37 S.Ct. 176, 61 L.Ed. 348, Ann.Cas.1917B, 796;McNaughton v. Johnson, 242 U.S. 344, 37 S.Ct. 178, 61 L.Ed. 352, Ann.Cas.1917B, 801), dentists (Graves v. Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331), and optometrists. Commonwealth v. Houtenbrink, 235 Mass. 320, 126 N.E. 669;Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 166 N.E. 558;Roschen v. Ward, 279 U.S. 337, 49 S.Ct. 336, 73 L.Ed. 722;Sage-Allen Co., Inc. v. Wheeler, 119 Conn. 667, 179 A. 195, 98 A.L.R. 897, and note.

Sometimes a statute has purported to require on the part of the proprietor of a business a license attesting skill in acts which he does not perform, but causes to be performed on his behalf by a duly qualified and licensed servant. In Louis K. Liggett Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204, a statute of Pennsylvania forbade a partnership or corporation to operate a pharmacy unless all the partners or stockholders were licensed pharmacists. It was held that the requirement of ownership by registered pharmacists had no legitimate relation to the health or interests of the public, and that the statute deprived the corporation of its property without due process of law. See also Wyeth v. Cambridge Board of Health, 200 Mass. 474, 86 N.E. 925,23 L.R.A.(N.S.) 147, 128 Am.St.Rep. 439;Burke v. Holyoke Board of Health, 219 Mass. 219, 106 N.E. 976;Schnaier v. Navarre Hotel & Importation Co., 182 N.Y. 83, 74 N.E. 561,70 L.R.A. 722, 108 Am.St.Rep. 790;People v. Ringe, 197 N.Y. 143, 90 N.E. 451,27 L.R.A.(N.S.) 528,18 Ann.Cas. 474;William Messer Co. v. Rothstein, 129 App.Div. 215, 113 N.Y.S. 772;New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 374, 76 L.Ed. 747. Such instances are to be distinguished from those in which, for sufficient reason, a license has been required from the proprietor of a business, attesting his fitness to carry it on. Commonwealth v. McCarthy, 225 Mass. 192, 114 N.E. 287;Bronold v. Engler, 194 N.Y. 323, 87 N.E. 427,21 L.R.A.(N.S.) 176.

A different rule has been applied to the learned professions. These are characterized by the need of unusual learning, the existence of confidential realtions, the...

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