Seifert v. Buhl Optical Co.

• Decision Date: 02 September 1936
• Docket Number: No. 28.,28.
• Citation: 276 Mich. 692,268 N.W. 784
• Court: Michigan Supreme Court
• Parties: SEIFERT et al. v. BUHL OPTICAL CO. et al.

276 Mich. 692

268 N.W. 784

SEIFERT et al.

v.BUHL OPTICAL CO. et al.

No. 28.

Supreme Court of Michigan.

Sept. 2, 1936.

Suit by Joseph A. Seifert and others against the Buhl Optical Company and another. From an adverse order, the named defendant appeals.

Affirmed.Appeal from Circuit Court, Wayne County, in Chancery; De Witt H. Merriam, Judge.

Argued before the Entire Bench, except POTTER, J.

Beaumont, Smith & Harris, of Detroit, for appellant.

Wilber M. Brucker, of Detroit, for appellees.

BUTZEL, Justice.

The three individual plaintiffs as registered optometrists and the Michigan Society of Optometrists, a nonprofit Michigan corporation, on behalf of themselves and duly registered members of their profession, filed a bill to enjoin the Buhl Optical Company, a Michigan corporation with its officers at Pittsburgh, Pa., and one Weinberg from advertising the prices of glasses and from using the statement ‘Scientific eye examination included,’ or any of like effect in its advertisements. No service was made on Weinberg, the parties stipulating that he was no longer agent of the Buhl Optical Company, herein referred to as defendant.

Plaintiffs claim that defendant violated subdivision (h) of section 8 (section 6788, Comp.Laws 1929) of the Optometrical Act of the state of Michigan, which reads as follows:

‘It shall be unlawful: * * *

‘(h) For any person, registered under this act, or any individual, firm or corporation engaged in the sale of merchandise of any description who maintains or operates, or who allows to be maintained or operated in connection with said merchandise business, an optometric department, or who rents or subleases to any person or persons for the purpose of engaging in the practice of optometry therein, any part of premises in which such person, persons, firm or corporation is engaged in mercantile business, to publish or circulate, or print or cause to be printed, by any means whatsoever, any advertisement or notice of the optometric department maintained, operated or conducted in said establishment or place of business, in which said advertisement or notice appears, any untruthful, or misleading statement, or anything calculated or intended to mislead or deceive the public or any individual or to quote prices of glasses, or to use in such advertisement the statement, ‘Eyes Examined Free,’ or words of similar import.'

The court, after issuing an order to show cause and denying a motion to dismiss, issued a temporary injunction notwithstanding the defendant's sworn answer refuting the essential allegations of the bill of complaint. Defendant was thus enjoined from publishing, advertising, or publicly stating through newspapers or otherwise, by words or figures or combinations thereof, any language quoting the prices of glasses; from using the statement ‘Eyes Examined Free,’ or words of similar import with reference to the quotation of a fixed price for glasses or in any other connection; from including in their advertisements the words, ‘Scientific Eye Examination Included,’ or any of similar import with reference to quotation of fixed prices for glasses or in any other connection; from using any other misleading statement, advertisement, or public notice calculated to mislead the public or any individual with reference to the quotation of prices of glasses or free eye examination.

The Buhl Optical Company, as appellant, claims that the bill of complaint is fatally defective and should have been dismissed on motion, as it alleges only that appellant recently opened a store in Detroit and has held itself out as operating a store for the sale of optical goods and maintaining and operating in connection therewith an optical department. Appellant claims that there is no allegation that it was actually practicing optometry, but only that it held itself out to that effect. Having admitted that it held itself out in the manner alleged in the bill, appellant cannot be heard to say that it actually was not practicing what it publicly announced was its occupation.

Appellant further claims that, if it employed only licensed physicians and surgeons, the act would not apply to it, because of the proviso in section 6787, Comp.Laws 1929, which states: ‘That the provisions of this act shall not be considered or construed to apply to physicians and surgeons duly licensed to practice medicine or surgery.’

The Buhl Optical Company is not a physician or surgeon, despite the fact that it may hire only physicians and surgeons to do its optometric work. The injunction is not pointed at a medical doctor, but at a ‘corporation engaged in the sale of merchandise * * * who maintains * * * in connection with said merchandise business, an optometric business.’ See Eisensmith v. Buhl Optical Company, 115 W.Va. 776, 178 S.E. 695, where the defendant made a futile attempt to circumvent the law by using a physician as a subterfuge.

The title to the act reads: ‘An Act to provide for the examination, regulation, licensing and registration of optometrists practicing optometry, and for the punishment of offenders against this act.’

It is claimed that this title does not give notice of a prohibition against certain types of advertising by a corporation engaged in optometrical work. While the title may be somewhat inartistically drawn, it is not inarticulate. It does call attention to the regulation of the practice of optometry and for the punishment of offenders against the act. We believe it...