Opinion
20248.
SUBMITTED OCTOBER 14, 1958.
DECIDED NOVEMBER 7, 1958.
Contempt; violation of injunctive order. Pulaski Superior Court. Before Judge Whaley. July 11, 1958.
Nelson Nelson, Ross Ross, A. Russell Ross, for plaintiff in error.
Eugene Cook, Attorney-General, J. R. Parham, Assistant Attorney-General, Paul M. Conaway, contra.
1. The respondent was not entitled to a trial by a jury on the issue of whether or not he had violated an injunctive order prohibiting him from practicing dentistry without a license.
2. Under the facts of this case, the admission of the testimony of two witnesses in regard to incidents not specifically alleged in the petition for citation for contempt does not require a reversal of the judgment.
3. No abuse of discretion is shown in the order of the trial judge holding the respondent in contempt for violating an injunctive order.
SUBMITTED OCTOBER 14, 1958 — DECIDED NOVEMBER 7, 1958.
C. A. Yarbrough and others, as members of the Georgia Board of Dental Examiners, brought a petition for injunction, under the provisions of Ga. L. 1956, pp. 25-27 (Code, Ann., § 84-702), against Thomas Hortman to restrain him from practicing dentistry without a license. A temporary restraining order was granted on October 5, 1957.
C. A. Yarbrough, as one of the petitioners in the injunction proceeding, brought a petition, on May 23, 1958, which recited the temporary restraining order, and alleged that, while this order was in full force and effect, the defendant openly and contemptuously violated it by practicing dentistry in Georgia, the contemptuous acts consisting of the following: In December, 1957, the defendant repaired the partial plate of Miss Laverne Mathis, and charged and received for his services the sum of $3. On January 25, 1958, the defendant made false teeth (dentures) for a Mr. Cape, for which he charged $75. The services rendered constituted the practice of dentistry and were rendered in the State of Georgia.
The trial judge issued an order that the defendant show cause before him on June 6, 1958, why he should not be adjudged in contempt of court for the violation of the injunctive order. The response admitted the paragraph of the petition setting out the order of the court, but denied the paragraphs alleging the practice of dentistry in violation of the order.
On the hearing of the citation for contempt, the following testimony was introduced:
William C. Cape testified: On or about January 25, 1958, he contracted with the respondent to make him a plate (false teeth) for $75. The respondent complied with his contract, and the witness has paid him $45 on the contract price. The services rendered were not ordered by, or returned to, a licensed dentist. The respondent made the statement to him that he only charged for the material that went into the plate and enough to take care of his overhead expense.
Mrs. Laverne Mathis testified: In December, 1957, the respondent repaired her plate (false teeth). She paid him $3 for this service, and he stated to her that he was only charging for the material that went into the repairing of the teeth.
Mrs. Norman Smith testified that the respondent did some work on her dental plate in April, 1958, and she paid him $10 for his services, which he stated was the amount that he had paid for the material used on her plate.
Charles Burnett testified: He went to the place of business of the respondent on July 5, 1958, and contracted with the respondent to make him an upper plate. He was told by the respondent that the charge would be $40, and he paid $20 at that time. The respondent took the impression of the upper part of his mouth and jaws; and later he returned to the respondent's place of business, the respondent delivered the plate, and he paid the respondent the remainder of the contract price. The respondent made some statement that he only charged for materials that he put in the plates he made for people. The work and services performed by the respondent were not ordered by or returned to a licensed dentist.
The respondent testified: He made a plate for Mr. Burnett and received $40 for his work, which "was the same amount that he had paid for the material that he had put into the plate, plus overhead expense." He has not charged a sufficient amount for his services to realize any profit over and above the material that went into the work, and an amount to take care of the overhead expense since he was enjoined in 1957 from practicing dentistry. The work and services for the four witnesses were performed in the State of Georgia, and had not been ordered by, or returned to, a licensed dentist.
The trial judge held the respondent in contempt of court and sentenced him to serve ten days in jail. In the bill of exceptions in this court error is assigned: on the refusal of the judge to grant the demand of the respondent for a jury trial; on the admission in evidence of the testimony of Mrs. Norman Smith and Charles Burnett, over the objection of the respondent that the acts sought to be proved by them had not been alleged in the petition seeking to hold him in contempt; and on the order adjudging the respondent in contempt.
1. "Every decree or order of a superior court in equitable proceedings may be enforced by attachment against the person for contempt; and if a decree shall be partly for money and partly for the performance of a duty, the former may be enforced by execution, and the latter by attachment or other process." Code § 37-1208. "Injunction, ne exeat, prohibition, and other extraordinary remedies may be enforced also by attachment." Code § 37-1210. Code § 24-105 provides that, "in no case shall any person be imprisoned for contempt for failing or refusing to pay over money under any order, decree, or judgment of any court . . . , when he denies that the money ordered or decreed to be paid over is in his power, custody, or control, until he has a trial by jury as herein provided."
The respondent in the present case cites the Constitution, art. VI, sec. XVI, par. I (Code, Ann., § 2-5101), as follows: "The right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate, . . ."; and asserts that, under this constitutional provision, he was entitled to a jury trial on the question made by the petition for citation and his denial.
In Gaston v. Shunk Plow Co., 161 Ga. 287, 299 ( 130 S.E. 580), the same contention was made by the respondent in that case under identical language in the Constitution of 1877. It was held: "The above provision of the Constitution preserves the right of trial by a jury as it existed at common law. . . The right to trial by a jury, unless extended by statute, applies only to actions proceeding according to the course of the common law, and not to special proceedings of a summary character. . . So the right to a trial by a jury in a contempt proceeding was not conferred by the above provision of the Constitution. There is no statute in this State which gives to a party the right to trial by a jury in a proceeding for contempt by a court to force obedience to its order, judgment, or process. This being so, the court did not err in trying any issue of fact, if such there be, in this proceeding, without the intervention of a jury. Dennard v. Farmers Merchants Bank, 149 Ga. 837 ( 102 S.E. 356)." See also Tindall v. Nisbet, 113 Ga. 1114, 1133 ( 39 S.E. 450, 55 L.R.A. 225).
The present case does not come within that class of proceedings for contempt provided for in Code § 24-105, wherein a jury trial is required, and the trial judge did not err in refusing the respondent's demand for a trial by a jury.
2. The petition for citation for contempt alleged that the respondent had practiced dentistry by performing described services for two named persons. On the hearing the trial judge allowed two other witnesses to testify in regard to services performed by the respondent for them, over the objection of the respondent. The respondent cites Carson v. Ennis, 146 Ga. 726, 729 ( 92 S.E. 221, L.R.A. 1917E 650), in which this court held: "However, it must be alleged in the contempt proceedings that the alleged contemnor had actual notice of the order for disobedience of which he is sought to be punished, and the acts or conduct relied on as establishing the contempt must be clearly and distinctly alleged." It is urged that the trial judge should hear evidence only as to conduct specifically alleged in the petition asserting a violation of the injunctive order.
In the case cited by the respondent, this court was dealing with pleadings, and not with the admissibility of evidence. We agree with the respondent, however, that the respondent in a citation for contempt is entitled to be apprised of the acts which he is charged with committing in violation of the injunctive order, so that he may be prepared to defend against such allegations on the hearing.
The respondent in the present case admitted in his testimony on the hearing that he had performed the services for all of the witnesses, including those witnesses whose testimony was admitted over objection. There was no conflict in the testimony introduced by the board of dental examiners and that of the respondent. The only defense that the respondent sought to make to the charge that he had violated the injunctive order was that the services performed by him for the witnesses did not amount to the practice of dentistry as defined by law. Under the facts of this case, the admission of the cumulative testimony in regard to incidents not specifically alleged in the petition for citation for contempt does not require a reversal of the judgment.
3. The "practice of dentistry" in Georgia was last defined by Ga. L. 1949, pp. 1161, 1162 (Code, Ann., § 84-701). Under this definition, "all persons who shall charge a fee or salary or any other reward, whether paid or unpaid to anyone directly or indirectly" for the performance of named services, including a person "who shall make or repair appliances usable on teeth or as teeth, unless said appliances are ordered by and returned to a licensed dentist," are practicing dentistry.
The respondent in his testimony admitted that he had performed services for the witnesses in making and repairing appliances to be used as teeth, and that the appliances had not been ordered by, or returned to, a licensed dentist. He stated that he "had not charged a sufficient amount for his services to realize any profit over and above the material that went into the work, and an amount to take care of the overhead expense since he was enjoined in 1957 from practicing dentistry." This testimony of the respondent clearly showed that he had practiced dentistry under the definition of the law. Ga. L. 1949, pp. 1161, 1162 (Code, Ann., § 84-701); Rivers v. Atlanta Southern Dental College, 187 Ga. 720 ( 1 S.E.2d 750).
The judgment of the trial judge finding the respondent in contempt of court was amply supported by the evidence, and no abuse of discretion is shown in his order. Patten v. Miller, 190 Ga. 152 (5) ( 8 S.E.2d 786).
Judgment affirmed. All the Justices concur.
I concur in the judgment, but do not concur in the rulings made in division 2 of the opinion.