Weill v. State ex rel. Gaillard, 3 Div. 479.

• Decision Date: 15 January 1948
• Docket Number: 3 Div. 479.
• Citation: 34 So.2d 132,250 Ala. 328
• Parties: WEILL v. STATE ex rel. GAILLARD et al.
• Court: Alabama Supreme Court

34 So.2d 132

250 Ala. 328

WEILL v. STATE ex rel. GAILLARD et al.

3 Div. 479.

Supreme Court of Alabama

January 15, 1948

Rehearing Denied March 11, 1948.

R Luther Ingalls, Frank J. Mizell, Jr., and Jack Crenshaw, all of Montgomery, for appellant.

Thos. B. Hill, Jr., Richard T. Rives, Hill, Hill Stovall & Carter and Hill, Hill, Whiting & Rives, all of Montgomery, for appellees.

LIVINGSTON Justice.

Action in the nature of quo warranto instituted by the State of Alabama ex rel. M. W. Gaillard, and M. W. Gaillard, individually, against Murray Weill, individually, and Murray Weill doing business as Serv-U-Dental Laboratory. The petition alleges that relator Gaillard is the secretary of the Board of Dental Examiners of the State of Alabama.

The amended petition alleges that the defendant Murray Weill has unlawfully intruded into the practice of dentistry. The particular alleged intrusion will be set out below.

The cause was tried before a jury and, upon completion of the evidence, the trial court gave the affirmative charge without hypothesis for the State. Verdict was returned in accordance with the instruction, and a judgment entered thereon, hence this appeal by defendant Weill.

We deem it unnecessary to analyse the pleadings here. The rulings of the trial court present for review the questions herein passed upon.

In pertinent part, section 83, Title 46, Code of 1940, provides: 'Any person shall be said to be practicing dentistry within the meaning of this chapter * * * who constructs or repairs himself, herself or by his or her employees or agents, a denture, bridge, orthodontic or other dental appliance on a model or cast made from an impression taken by anyone except a dentist licensed to practice by a board of examiners duly elected or appointed and only on said dentist's instructions and authorization, and the burden of proving such authorization shall be upon the person, persons or organization charged with the violation of this chapter; or who shall deliver, or cause to be delivered, in person, by carrier, mail or other method, said appliance except to a dentist licensed and qualified as above provided for.'

Said section 83 also contains the following proviso: 'Provided, however, that nothing in this chapter shall prevent * * * any person employed in or connected with a commercial dental laboratory from the performance of mechanical work on inanimate objects only in the construction or repair of dentures, crowns, bridges, obturators, orthodontic or other dental appliances, provided that impressions, casts or measurements for such work shall have been made or taken by a dentist licensed to practice as herein provided for, and that said construction or repair shall be done only on his or her authorization, and to be delivered only to a dentist licensed to practice as herein provided for.'

Relator alleges particularly that the intrusion by Weill into the practice of dentistry consists in this:

'(d) Constructing or repairing himself, or by his agents or employees, dentures or other dental appliances on models or casts made from impressions taken by dentists duly and legally licensed to practice, but without instructions or authorization of such dentists; or

'(e) Delivering or causing to be delivered in person, by carrier, mail or other method such dentures or dental appliances referred to in subparagraph lettered (d) above to other than dentists licensed and qualified to practice dentistry as provided by law.'

The evidence disclosed the following undisputed facts: Murray Weill is a dental laboratory technician. He does not claim to be a licensed dentist. In February of 1946, he opened an office in the city of Montgomery, Alabama, to engage in the business of operating a dental laboratory. Prior to that time, and since 1936, with the exception of some time spent in the Army during the late war, he was employed by the Fordham Cooperative Dental Laboratory in New York as a dental laboratory technician. For some time after opening his office in Montgomery, Weill performed his work under the instructions and authorization of licensed dentists, and delivered the finished product to the dentist, and perhaps continues to do some work in that manner. These operations did not prove entirely satisfactory, and Weill began doing certain work without instructions or authorization from licensed dentists, dealing directly with those for whom the work was done. Without instructions or authorization from a licensed dentist, he made or constructed dentures for one Mrs. Nina Cannady, Mrs. J. H. Hay and others, and delivered said dentures directly to the parties for whom made, and charged and collected a fee for his services. He also replaced a lost tooth in a denture for one Mrs. M. M. Brown without instructions or authorization from a licensed dentist, and charged and collected a fee therefor. As to how these dentures were made, Weill testified as follows:

'Q. In making these false teeth, do you prepare a mold in which they are molded, or how do you go about making them? A. Prepare a model.

'Q. You do prepare a model? A. Prepare a model from the old denture.

'Q. Take out the old plate and use that---- A. (Interposing): To prepare the model.

'Q. To prepare the model. Of course, that old plate was originally prepared by an impression? A. By a dentist at one time or another.

'Q. At one time or another; it's got to go back to an impression? A. Yes.

'Q. You couldn't very well have a denture to go in your mouth that doesn't start off with an impression taken of the gums? A. Yes, sir.

'Q. You always have to have that to start? A. Yes, Sir.

'Q. This upper plate had been prepared from an impression? A. Yes.

'Q. And you put plaster of paris or something around it and make the mold? A. Yes, sir.

'Q. And you use that mold in preparing a duplicate? A. Yes, sir.

'Q. That's the kind of work you have been doing since November last year? A. Yes, sir.

'Q. And that's the kind of work you are still doing in Montgomery? A. Yes, sir.

'Q. In addition to that, you are repairing broken plates when they are brought to you by the patient? A. If they are broken. Some have come in who have to have an impression. Those I turn away.

'Q. You haven't prepared any impression of teeth? A. No.

'Q. But you have prepared plates? A. Yes, sir.

'Q. And made new teeth? A. Yes, sir.

'Q. And you do put false teeth in them, and you are still doing that kind of work? A. Yes, sir.'

The foregoing testimony is uncontradicted in the record.

The following testimony of Dr. John Carter, a witness for relator also stands uncontradicted:

'Q. Doctor, we have used in our petition in this case some terms that are a little bit confusing to a layman. I want to ask you to explain those to the jury in plain and simple language. One is a denture or dental appliance, and an impression. Will you explain these terms as used in plain language? A. A denture covers the term dental, both the entire plates, artificial teeth, or removable appliance replacing some of the teeth that are lost. It can be either partial or whole removable appliance.

'Q. What is an impression, Doctor? A. The simplest way to state that, if I had some modeling clay, as we say, or some putty, and press my tooth in that, when I withdrew my tooth it would leave an impression of my tooth in this clay. Now, a denture impression is worked on that same principle. We have a metal tray that conforms to the contour of the mouth, of both upper and lower jaw. In making an impression we put some impression material, which is soft, into this tray, and then stick the tray into the mouth and carry it up to the plates. We let it harden, and take it out, and we speak of what we have, after taking an impression of the bone, as an impression.

'Q. Now, how is that impression used in making the denture? Denture includes the false teeth, and all that, as I understand it. A. After we have got the impression, then we run into this impression a substance similar to plaster of paris. If it is not plaster of paris, it is something that includes plaster of paris and something else. It is a soft substance. It goes in your impression, and we have a little wait until it hardens. Then that produces what we call a model. From that model we prepare the impression, and that gives you a duplication of the mouth itself, of the object we took the impression of.

'Q. The impression conforms to every contour of the mouth? A. Yes, sir.

'Q. Then you form a model or mold from that impression? A. Yes, sir.

'Q. What is done in making an actual set of teeth? A Then we take some wax and go over that model that we have, and set the teeth up on this wax, and then, of course, it is gone through the process of putting it into a glass, the wax is gotten out, and then soft rubber is placed in to replace your wax, if you are making rubber denture, and it is vulcanized, carried into the vulcanizer, and after it is processed or hardened--I think it would be in about three hours--then it is taken out and polished up, and this is your finished denture.'

While the foregoing is not all of the evidence presented in the court below, we think it clearly presents the questions here involved.

Appellant earnestly insists that the evidence is not sufficient to show that he practiced dentistry, as particularly alleged in relator's petition. More specifically, he argued that the burden of proof is on the relator to prove that he is practicing dentistry as defined in the Act, and charged in the petition. Or, negatively put, proof that he repaired or duplicated existing dentures without the use of any impressions, or without the use of a model or cast made from an impression, is insufficient to prove the practice of dentistry, which was...