Opinion
No. 21866.
March 16, 1953.
APPEAL FROM THE JACKSON CIRCUIT COURT, JACKSON COUNTY.
Joe E. Burris, Kansas City, for appellant.
William Icenogle, Jack G. Beamer and Stubbs, McKenzie, Williams Merrick, Kansas City, for respondent.
This action was instituted by the Missouri Dental Board, plaintiff, which sought to enjoin Eastern Dental Company, a corporation, from engaging in conduct alleged to be in violation of the provisions of Section 332.230, RSMo 1949, V.A.M.S., as provided in subparagraph 1(2) thereof. The court found that defendant had violated the provisions of the statute. The judgment was that it be enjoined from advertising its business, as mentioned in paragraphs c, d, e and f of the stipulation, infra, unless said signs and advertisements contain a statement informing the public that its services and products are for sale to dentists only.
The pertinent provisions of Section 332.230, supra, are as follows:
"1. It shall be unlawful for any person or persons, not duly registered and licensed to practice dentistry, or for any association, corporation or other entity:
"(1) * * *
"(2) To solicit or advertise, directly or indirectly, by mail, card, newspaper, magazine, periodical, pamphlet, radio, sign, display, or in any other manner to the general public, to construct, supply, reproduce, or repair prosthetic dentures, bridges, plates, or other appliances to be used or worn as substitutes for natural teeth or for the regulation of natural teeth."
The cause was submitted on a stipulation of facts, the material portions of which are to the following effect:
(a) That defendant is a Missouri corporation engaged in the business of dispensing opticians which consists of filling prescriptions of oculists and optometrists.
(b) Defendant is also engaged in the business of operating and conducting a dental laboratory, the business of which is constructing, supplying, reproducing and repairing prosthetic dentures, bridges, and plates for dentists to be used and worn as substitutes for natural teeth.
(c) That appellant displays its legal name on the window of its premises at 1017 Walnut Street in Kansas City, as shown in Exhibit I.
(d) That appellant maintains a display case at the sidewalk level adjacent to its premises and displays therein certain optometric products as well as models of prosthetic dentures, bridges and plates which are of a kind used and worn as substitutes for natural teeth, all as shown by Exhibits 2 and 3.
(e) That appellant's optical department caused to be published in a newspaper of general circulation in Kansas City, Missouri, a certain advertisement, as shown by Exhibit 4.
(f) That appellant caused to be published in the classified section of the Greater Kansas City telephone directory an advertisement appearing in evidence as Exhibit 5. The contract for this advertising was in writing and the telephone company reserved the exclusive right of placing the copy in such location in the directory as to it seemed desirable.
Defendant contends that the statute here under consideration is penal and that its provisions must be strictly construed. However, in Rust v. Missouri Dental Board, 348 Mo. 616, 155 S.W.2d 80, 89, where a similar statute was being considered, our Supreme Court said:
"The rule of strict construction `has lost much of its force and importance in recent times, since it has become more and more generally recognized that the paramount duty of the judicial interpreter is to put upon the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object.'"
In Union Electric Company v. Morris, 359 Mo. 564, 222 S.W.2d 767, 770, the court said:
"* * * The statute must be construed with reference to the particular facts in the case and every word, phrase and sentence must be given some meaning if that can be done." (Italics ours).
Defendant says: "The prohibitions of Section 332.230 RSMo 1949, V.A.M.S., against advertising by persons not registered and licensed to practice dentistry, were not intended to apply unless the advertising and other conduct inhibited, itself constituted the practice of dentistry, as dentistry is defined in the statute law."
Whether or not defendant engaged in the practice of dentistry, as the same is defined in Section 332.010 RSMo 1949, V.A.M.S., is not material to a decision of this case. The thing condemned is "advertising" to the general public, by one not licensed as a dentist, that the advertiser will do the things mentioned in the statute. "Advertise," as used in the statute, means: "To give public notice by emphasizing desirable qualities, in order to arouse a desire to purchase." Webster's New International Dictionary, 2nd Ed., Vol. 1.
Section 332.230, supra, came into being through adoption by the Legislature of two separate laws, H.B. 295 and 296, 1943 Laws Missouri, 971-972. H.B. 295 provided for the amendment of Chapter 64, RSMo 1939, by adding a new section thereto, immediately following Section 10088, to be known as Section 10088a. By H.B. 296, Chapter 64, supra, was further amended by adding a new section, immediately following Section 10087, to be known as Section 10087a.
Section 10087, supra, defined the practice of dentistry. That section now constitutes Section 332.010 RSMo 1949, V.A.M.S. Section 10088, RSMo 1939, dealt with the method of payment of costs incurred in proceedings involving the Missouri Dental Board.
In 1941 the Legislature prescribed procedure to be followed for the suppression of the unauthorized practice of dentistry. 1941 Laws Missouri, page 653 et seq. That code appears as Sections 332.240, 332.250, 332.260, 332.270, and 332.280 RSMo 1949, V.A.M.S.
From the above it appears that, prior to 1941, no authority existed for the procedure followed in the case at bar. The Legislature has, however, authorized this procedure to apply in cases involving charged violations of subparagraph 1(2) of Section 332.230. Sections 332.250, 332.260 RSMo 1949, V.A.M.S.
A careful reading of the law regulating dentistry, as shown by the Revised Statutes of 1939, as amended thereafter, and as now shown in Chapter 332, RSMo 1949, V.A.M.S., discloses that it has evolved "in piecemeal." It has some apparent uncertainties. However, it is clear that the Legislature intended to authorize the maintenance of an action of the character here involved, to enjoin any person or persons, association, corporation, or other entity, from soliciting or from advertising directly, or indirectly, to the general public, to construct, supply, reproduce, or repair appliances to be used or worn as substitutes for natural teeth, or for the regulation of natural teeth. Violation of subsection 1(2) supra, does not, necessarily, involve the practice of dentistry, or proof of that fact. It is sufficient evidence of violation if the person charged is shown to have advertised, directly or indirectly, to the general public, that he would, in effect, practice dentistry (for the general public) by constructing, supplying, etc., appliances to be used as substitutes for natural teeth. A different construction would do violence to the intent of the Legislature, as that intent is expressed in the language used.
Defendant says that the question for decision is: Did defendant advertise, to the general public, to construct, supply, reproduce, or repair appliances (for the general public) to be used or worn as substitutes for natural teeth? The answer to that question must be found in the stipulation of facts, and in the exhibits referred to therein, which are before us.
Exhibit I, mentioned in paragraph (c) of agreed facts, supra, is a sign, in large letters, on the second story window of defendant's premises, announcing its legal name. It is simply that, and nothing more. It is difficult to believe that such a simple sign, under "the particular facts of the case," on the second story window of its place of business, could constitute an effective notice to the public that defendant would supply or serve the general public as a practicing dentist. It constitutes a notice, to every one who sees it, that defendant's business is located at that place. But it is not displayed under such circumstances as to indicate, of itself, that it solicits the dental business of the general public.
Exhibits II and III are photographs of a display window, at the sidewalk level of a downtown street corner, in the heart of the retail business district of Kansas City. One section of the window is filled with replicas of dentures designed to be used as substitutes for natural teeth. The other section, facing another street but immediately adjacent and a part of the first, is filled with optical goods. Over said window, in large letters, on both street fronts, appears identical signs: "Products of New York Eastern Dental Co. Laboratory." Underneath the dental display appears, in large letters: "New York Eastern Dental Co. Laboratory." Under the optical display appears, in letters similar to those just mentioned: "New York Eastern Dental" and, in smaller lettering, "Laboratory Optical Co." The latter section of the window contains the following sign: "Dispensing Opticians, Second Floor." It is not disputed that defendant displayed the optical goods for sale to the general public. Indeed, the sign in that section of the window constituted a direct solicitation to the public to come to the second floor and buy the merchandise. "The particular facts of the case" evidence that defendant's dental products and services were being advertised as for sale to the general public. That is what the statute condemns.
Exhibit IV is a replica of a display advertisement appearing in a Kansas City newspaper of wide circulation. It purports to be sponsored by the "Optical Department" of defendant company, but there appears in the center of the display a large likeness of a set of dentures for use as substitutes for human teeth. Across this "likeness," in large letters appears: "New York Eastern." In the upper right corner appears, "The Old Reliable For Over 50 Years. Dispensing Opticians. Optometrists' and Oculists' Prescriptions Filled." In the lower left corner appears: "You'll Find Our Service Accurate — Stylish — Low In Price. Victor 1816. Hours Daily 8:30 to 5:30. Repairing — One-Day Service." In the lower right corner, in large letters, appears the name and address of defendant.
The most prominent feature of this display advertisement is the likeness of the dentures, bearing the legend "New York Eastern." If the advertisement was not intended to inform the general public of the nature of defendant's business it seems unlikely that it would have sponsored and paid for such an advertisement. Defendant intended the advertisement to promote the sale of its products, else it would not have gone to that expense. If it intended the advertisement to promote its optical business alone, why did it display the likeness of an appliance designed for use as a substitute for human teeth? "The particular facts" of this advertisement indicate a studied effort on defendant's part to evade the provisions of the statute by indirectly, if not directly, advertising its dental services and products to the general public for the purpose of creating a demand therefore on the part of the general public. Such an advertisement is calculated to attract business from the class to whom it is addressed.
Exhibit V is a display advertisement appearing in the classified section of the Kansas City telephone directory. In the upper right corner appears a likeness of a dental plate, similar in every respect to that shown in Exhibit IV. Directly under the dental plate appears the words: "`The Old Reliable' For Over 50 Years." Under that appears "New York Eastern" in large lettering and, in smaller type, the remainder of its legal name, together with its address. In the upper left, in large type appears: "Save Money. Prompt And Efficient One Day Service. Victor 1816"
Such an advertisement constitutes a violation of the statute. Through it the general public was informed that it can save money by using defendant's products and its prompt and efficient one day service. Save money on what? What service? The only mention of its optical department is "Optical Co.," in small letters; but the likeness of a dental place dominates the advertisement. The general public is thereby invited to make use of its dental products and service.
We are cited to no case directly in point.
Defendant cites, and relies on Winner v. Kadow, 373 Ill. 192, 25 N.E.2d 882. There defendant, who operated a dental laboratory, was charged with violating an Illinois statute prohibiting any unlicensed person from practicing dentistry. It is not helpful to us.
State v. Beck Jewelry Enterprises, 220 Ind. 276, 41 N.E.2d 622, 141 A.L.R. 876, an Indiana case cited by defendant, deals with the construction of a statute regulating the practice of optometry. The decision is not in point.
In People v. A. A. A. Dental Laboratories, Inc., 318 Ill.App. 160, 47 N.E.2d 371, 373, the Illinois Court held that a newspaper advertisement, by defendant, presenting its products to the public was not in violation of a statute, S.H.A. ch. 91, § 72a, similar to the Missouri statute. The reason stated for the decision was that the advertisement carried the following notice: "`Dentures made upon receipt of order impression from Licensed Dentists only.'"
The case of Rust v. Missouri Dental Board, supra, was one wherein a licensed dentist was charged with unethical conduct, in that he had "advertised" his services and prices, in violation of a statute.
The order, judgment, and decree of the trial court, in the case at bar, insofar as it relates to defendant having displayed its legal name on the second story window of its premises, as mentioned in paragraph (c) of the agreed statement of facts, and as shown in Exhibit I, should be reversed; and the remainder of said judgment, with that exception, should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The order, judgment, and decree of the trial court, in the case at bar, insofar as it relates to defendant having displayed its legal name on the second story window of its premises, as mentioned in paragraph (c) of the agreed statement of facts, and as shown in Exhibit I, is reversed; and the remainder of said judgment, with that exception, is affirmed.
All concur.