United Dentists v. Commonwealth

Citation162 Va. 347
PartiesUNITED DENTISTS, INCORPORATED v. COMMONWEALTH.
Decision Date22 March 1934
CourtSupreme Court of Virginia

1. APPEAL AND ERROR — Writ of Error Improvidently Awarded — Moot Question — Case at Bar. — In the instant case there was a motion to dismiss the writ of error, on the ground that it was improvidently awarded. It was contended that the petitioner was entitled to a writ as a matter of right. Whether or not petitioner was entitled as a matter of right to a writ of error was immaterial, in view of the fact that a justice of the Supreme Court of Appeals, during the vacation of the court, granted a writ of error to the judgment complained of, and the case was on the docket of the court in the usual course. The question is a moot one, and any expressions in regard thereto would be obiter dicta. The motion to dismiss was therefore overruled.

2. CORPORATIONS — Witnesses — Officers of Corporation — Revocation of Charter — Presence of Representatives of Corporation at Trial — Discretion of Trial CourtCase at Bar. The instant case was an action brought to revoke the charter of a corporation, on the ground that the corporation had wilfully and habitually misused and abused its corporate functions. When the case was called for trial upon the issue joined, the Commonwealth moved for an exclusion of all the witnesses. Counsel for the defendant resisted the motion on the ground that, as the defendant was a corporation, it was entitled to have present during the trial the president and its secretary and treasurer. The court ruled that only one officer of the corporation was entitled to remain in the court, and thereupon counsel elected to have the secretary and treasurer remain. While the presence of witnesses during the trial of a civil action is not controlled by statute, there can be no doubt that the trial court, in the exercise of a sound discretion, has the power to limit the number of representatives each litigant is entitled to have remain in court. Especially is this true when the requested representative is to be introduced as a witness.

Held: That there was no error in the action of the court.

3. CORPORATIONS — Witnesses — Agent or Officer of Corporation — Presence at Trial. — Where the party is necessarily absent his agent whose presence is required by counsel on account of his knowledge of the case, should not be excluded. Where defendant is a corporation it is not error to refuse to permit an officer or employee thereof to remain for the purposes of advising with counsel, unless it appears that he has been put in control of the litigation. And where two officers of a corporation are witnesses, one of them may be put under the rule.

4. DENTISTS — Practice of Dentistry — Definition. Section 1640 of the Code of 1930 defines the practice of dentistry.

5. CORPORATIONS — Action to Revoke Charter — Proceedings Instituted by the Attorney General in the Name of the Commonwealth. Section 3831 of the Code of 1930 provides that any corporation which shall wilfully and habitually misuse any essential corporate function shall thereby forfeit its charter. Proceedings to forfeit the charter of a corporation under the provisions of that section may be instituted by the Attorney General in the name of the Commonwealth.

6. PLEADING — Proof. — To say that allegation is not proof is but to state a truism.

7. CORPORATIONS — Action to Revoke Charter — False Advertisements — Proving a Negative — Case at Bar. The instant case was an action to revoke the charter of a dental corporation. The Commonwealth alleged as a ground for the revocation of the charter false advertisements by the corporation. It was argued that to require the Commonwealth to prove the falsity of the advertisements was to place upon it the burden of proving a negative. That burden the Commonwealth frequently assumes. Thus, in every case of forgery, the burden is on the Commonwealth to prove beyond a reasonable doubt that the signature is not the true signature of the alleged signer of the instrument. Where the proof of negative matter is essential to the maintenance of a cause of action, this may necessitate a negative averment, and the plaintiff has the burden of proving it, because looking at the substance of the issue as a whole, he must be regarded as asserting the affirmative thereof. When a plaintiff's right of action is grounded on a negative allegation, which is an essential element in his case, the burden is on him to prove that allegation, the legal presumption being in favor of the party charged.

Held: That the burden of proof was upon the Commonwealth to prove that the advertisements were false.

8. EVIDENCE — Proving a Negative — General Rule — Exceptions. — The rule is not universal, which forbids the proof of a negative to be thrown upon a party. It is, indeed, generally true, that the onus probandi lies upon that party who has the affirmative of the issue; a rule founded upon the difficulty, in most cases, and the impossibility in some, of proving a negative. But to this general rule, there are well-established exceptions.

9. EVIDENCE — Proof of Negative — Exception to the General Rule. — There is another exception to the general rule. It is, that where the negative involves a criminal omission in the party, and consequently where the law upon its general principle presumes his innocence, the affirmative of the fact is presumed, and the onus is thrown upon the party alleging the criminal omission.

10. EVIDENCE — Proof of Negative — Burden of Proof. — If, regardless of terms, it is borne in mind that when the issue is joined he has the burden of proof who seeks to move the court to act in his favor, the question of whether the grounds of his claim are alleged affirmatively or negatively is really of no consequence.

11. EVIDENCE — Negative — Proof of Negative — Burden of Proof. — When a plaintiff's right of action is grounded in a negative allegation, which is an essential element in his case, or which involves a charge of criminal neglect of duty or fraud by an official, the burden is on him to prove that allegation, the legal presumption being in favor of the party charged. $t12. CORPORATIONS — Revocation of Charter — False Advertisements — Instruction — Case at Bar. — In an action to revoke the charter of a corporation for false advertisements by the corporation, and for permitting employees to practice dentistry without licenses, in accentuation of the error in allowing the advertisements to go to the jury without proof of their falsity, the court of its own motion, and over the objection of defendant, instructed the jury "that in considering the advertisements introduced in evidence the jury are to determine from all the testimony before them whether or not such advertisements are wilfully false."

Held: Error. The vice in the instruction is that it gave the jury free rein to conclude that, if the testimony of defendant's witnesses was false, a fortiori the advertisements were false. Such a conclusion does not necessarily follow.

13. CORPORATIONS — Action to Revoke Charter — False Advertisements — Instruction — Case at Bar. The instant case was an action to revoke the charter of a dental corporation for false advertisements by the corporation, and for permitting employees to practice dentistry without licenses. The trial court refused the following instruction: "The court instructs the jury that they have no right to presume or assume that any of the advertisements introduced in evidence are untrue, but the Commonwealth must prove by a preponderance of the evidence that the advertisements or any of them are untrue; and that they were wilfully and habitually published for the purpose of deceiving and defrauding the public."

Held: That the instruction should have been given.

14. CORPORATIONS — Action to Revoke Charter — False Advertisements — Instructions — Satisfy — Case at Bar. The instant case was an action to revoke the charter of a dental corporation for false advertisements by the corporation, and for permitting employees to practice dentistry without licenses. The trial court refused instructions to the effect that the burden was on the Commonwealth to satisfy the jury by evidence that the advertisements were designedly and purposely false.

Held: That there was no error in refusing the instructions, as they were too broad. "To satisfy" means "to free from doubt, suspense, or uncertainty; to give assurance to; to set at rest the mind of." $15. CORPORATIONS — Action to Revoke Charter of Dental Corporation — Not a Criminal ProsecutionCase at Bar. The instant case was an action to revoke the charter of a dental corporation on the grounds of false advertisements by the corporation and for permitting employees to practice dentistry without licenses. It did not involve a criminal prosecution, and hence the burden was not upon the Commonwealth to prove the guilt of the defendant beyond a reasonable doubt. The burden resting upon the Commonwealth was to prove by a preponderance of the evidence that the advertisements or any of them were untrue.

Error to a judgment of the Circuit Court of the city of Norfolk, in a proceeding by motion to revoke the charter of a corporation. Judgment for the Commonwealth. Defendant assigns error.

The opinion states the case.

Daniel Coleman and Nathaniel T. Green, for the plaintiff in error.

John R. Saunders, Attorney-General, and Venable, Miller, Pilcher & Parsons, for the Commonwealth.

CAMPBELL, C.J., delivered the opinion of the court.

We are met at the outset of this case with a motion to dismiss, on the ground that the writ of error was improvidently awarded. It is contended in the petition for the writ of error that by virtue of section 3831 of the Code, petitioner is entitled to a writ as a matter of right. Whether or not petitioner was entitled as a matter of right to a writ of error becomes immaterial, in view of the...

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21 cases
  • Mueller v. Schien
    • United States
    • United States State Supreme Court of Missouri
    • 6 Diciembre 1943
    ...S.W. (2d) 921; Henderson v. Page, 78 S.W. (2d) 293; Heacock v. Baule, 216 Iowa, 311, 249 N.E. 437; United Dentists, Inc., v. Commonwealth, 162 Va. 347, 173 S.E. 508; Hyndshaw v. Mills, 108 Neb. 250, 187 N.W. 780; Myerl v. Gutzeit, 50 Ohio App. 83, 197 N.E. 503; Nabers v. Long, 207 Ala. 270,......
  • Mueller v. Schien
    • United States
    • United States State Supreme Court of Missouri
    • 6 Diciembre 1943
    ...... Henderson v. Page, 78 S.W.2d 293; Heacock v. Baule, 216 Iowa 311, 249 N.E. 437; United Dentists,. Inc., v. Commonwealth, 162 Va. 347, 173 S.E. 508;. Hyndshaw v. Mills, 108 Neb. 250, ......
  • State v. Barton
    • United States
    • United States State Supreme Court of Missouri
    • 12 Febrero 1951
    ...the commonwealth and the defendant as relating to alibi; they do not mean 'satisfy' or 'preponderate' beyond a doubt.' United Dentists, Inc., v. Commonwealth, 162 Va. 347, 173 S.W. 508, 511, did not involve a criminal prosecution and the burden upon the state was proof only by a preponderan......
  • Burford v. Commonwealth
    • United States
    • Supreme Court of Virginia
    • 8 Junio 1942
    ......, the court may, in its discretion, exclude from the trial any or all persons whose presence is not deemed necessary."        In United Dentists v. Commonwealth, 162 Va. 347, 352, 173 S.E. 508, it was held that the trial court, in civil cases, had power, in the exercise of ......
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