State v. Kindy Optical Co.

• Decision Date: 09 May 1933
• Docket Number: No. 41807.,41807.
• Parties: STATE v. KINDY OPTICAL CO.
• Court: Iowa Supreme Court

216 Iowa 1157

248 N.W. 332

STATE

v.KINDY OPTICAL CO.

No. 41807.

Supreme Court of Iowa.

May 9, 1933.

Appeal from District Court, Polk County; John J. Halloran, Judge.

This is a suit in equity, brought under the provisions of section 2519 of the 1931 Code, to enjoin the defendant corporation from practicing optometry in this State. There was a trial to the court, the prayer of the plaintiff was denied, and the plaintiff's petition dismissed. The plaintiff appeals.

Reversed and remanded.Edward L. O'Connor, Atty. Gen., and Gerald O. Blake and John Fletcher, both of Des Moines, for the State.

Gamble, Read & Howland, of Des Moines, for appellee.

ANDERSON, Justice.

The appellee, Kindy Optical Company, is a Delaware corporation organized for the purpose, among other things, as shown by its articles, “to manufacture, purchase and sell optical goods and glasses of every character, mathematical and scientific instruments, photographic supplies, and materials, and carry on the business of opticians and dealers in optical goods and allied lines.” Its practice has been, and is, to establish, equip, maintain, and operate offices and places where licensed optometrists may carry on the practice of optometry, and at the time of the commencement of this action was maintaining and operating such an office or place of business in the city of Des Moines, under the management of one W. O. Jensen, who was a licensed optometrist in the state of Iowa; the said office or place of business being located at Younker Bros. Department Store in said city. The said Kindy Optical Company, appellee, is not licensed to practice optometry within the state of Iowa and is not such a person or entity as can engage in the practice of the profession of optometry in the state of Iowa.

W. O. Jensen, a licensed optometrist, was employed by the appellee for several years to conduct like business, and before coming to Des Moines conducted and managed, as an employee, similar business for the appellee in Minneapolis, Duluth, Kansas City, Detroit, Pittsburg, and Sioux City. Prior to going to Des Moines, Jensen was employed by the appellee as optometrist and manager of an optical department in Davidson Bros. Department Store at Sioux City, Iowa. He was sent by his employer to Des Moines on August 15, 1931, to take charge of an optical department owned by the appellee in Younker Bros. Department Store and was to open the department on that date. There was some indication of some trouble with the state authorities over the establishment and operation of the business, and the opening thereof was delayed until the 17th day of August, at which time the office or department was opened under the management of Jensen and continued in operation several months thereafter.

On the 17th day of August, 1931, an alleged lease was entered into between the appellee and Jensen under the terms of which the appellee purported to lease to Jensen certain examination rooms or space located in the store building occupied by Younker Bros. in the city of Des Moines. In this instrument the lessor, the Kindy Optical Company, agreed to pay the lessee, W. O. Jensen, the sum of $281.66 per month. The so-called lease provided that all eye examinations should be under the exclusive control of the lessee.

On the same day the Kindy Optical Company and Jensen entered into a written contract of employment, under the terms of which the appellee agreed to employ the said Jensen, and the said Jensen agreed to remain in the employ of appellee, for a period of two years. This instrument provided that the said Jensen should be the manager of the optical department of the Kindy Optical Company located in Younker Bros. store building in Des Moines, Iowa, “but the second party (Jensen) shall in all things be subject to the control and direction of the proper officers of the first party” (Kindy Optical Company). This contract further provided that all moneys derived from said business should be deposited in the name of the Kindy Optical Company in a bank selected by it and that all disbursements should be made by check drawn by the proper officers of the company. This contract provided a salary to be paid to Jensen of $240 per month and certain percentages.

Both of the above-mentioned instruments contained provisions permitting their cancellation or termination upon giving seven days' notice.

All of the machinery and equipment installed and used in the business was the property of the appellee and all the accounts of the business were handled through the Younker Bros. store. The name of the appellee did not appear in any way in the business. The advertisements of the business appeared in the name of Younker Bros. They were prepared at the home office of the appellee in St. Paul and inserted in the newspapers and paid for by the appellee. Any money received by Jensen for eye examinations was to be deducted from the amount he was to receive under the alleged lease, or contract of employment.

The state of Iowa, appellant, instituted this proceeding, under the provisions of section 2519 of the 1931 Code, for the purpose of enjoining the defendant, appellee, from practicing or engaging in the practice of optometry in Iowa, alleging that it had not complied, and could not comply, with the provisions of title 8 of the 1931 Code (section 2438 et seq.).

The statutes material for our consideration in determining the issues here presented are as follows:

Section 2439. “No person shall engage in the practice of medicine and surgery, podiatry, ‘osteopathy,’ ‘osteopathy and surgery,’ chiropractic, nursing, dentistry, dental hygiene, optometry, pharmacy, cosmetology, barbering, or embalming as defined in the following chapters of this title, unless he shall have obtained from the state department of health a license for that purpose.”

Section 2574. “For the purpose of this title the following classes of persons shall be deemed to be engaged in the practice of optometry:

1. Persons who employ any means other than drugs for the measurement of the powers of vision of the human eyes, and adapt lenses for aiding the same.

2. Persons who allow the public to use any mechanical device for such purpose.

3. Persons who publicly profess to be optometrists and to assume the duties incident to said profession.”

Sections 2576 and 2577 prescribe the requirements necessary for the procurement of a license to practice optometry.

Section 2528. “The opening of an office or place of business for the practice of any profession for which a license is required by this title, the announcing to the public in any way the intention to practice any such profession, the use of any professional degree or designation, or of any sign, card, circular, device, or advertisement, as a practitioner of any such profession, or as a person skilled in the same, shall be prima facie evidence of engaging in the practice of such profession.”

The defendant's contentions are: That it is not practicing optometry; that Jensen was the lessee of the plaintiff and was not under its supervision or control in the practice of optometry; that the defendant did not publicly profess to be an optometrist or to assume the duties incident to said profession; that if section 2574 of the Code can be construed to prohibit the defendant from operating its business in Des Moines, as it was operated, it is in contravention of the provisions of both the state and federal Constitutions, and that there is no evidence in the record that the act complained of by the state was being carried on by the defendant at the time this action was tried.

It is shown by the record that the defendant did open an office or place of business in Des Moines and equipped the same for the practice of optometry. Following this it employed a licensed optometrist to manage and conduct said business. That the defendant itself did not and could not procure a license for the practice of optometry within the state of Iowa.

[1] The defendant contends that there is no evidence in the record that the acts complained of were being carried on by it at the time of the trial. However, the record affirmatively shows that the conditions complained of existed at the time the action was commenced. And while the record shows that Jensen had been discharged from the employ of the defendant at the time of trial, there is no showing that a substitution was not made and another licensed optometrist was employed in his place. And the presumption prevails, without a showing to the contrary, that the condition and situation shown to exist at the time of the commencement of the action continues and was existing at the date of the trial. The case of State v. Fray (Iowa) 241 N. W. 663, 81 A. L. R. 286, answers the contentions here made. On page 666 of the opinion in 241 N. W. we used this language: “Some stress is laid by appellant upon the fact that the illegal acts charged against the defendant were all in the past * * * and that the complaint does not show any threatened act in the future. The complaint is drawn in the present tense. Such is the form of the statute. The complaint...