HENDERSON v. STATE BOARD

The State Board of Examiners in Optometry brought an application for contempt of court against James P. Henderson in Floyd Superior Court. The application alleged: that Henderson is carrying on the practice of optometry in violation of Rule F (11) of the board by practicing under the trade name "Pearle Optical"; that he is violating Rule F (14) of the board by displaying to the public a large sign at the location where he practices saying "Glasses as low as $14.50" and "Contact Lenses $75.00"; that by violating these two rules he is also violating Rule I of the board. The respondent Henderson demurred to the application on several grounds, but now only insists upon grounds 1 and 4 of the demurrer. The trial judge overruled all grounds of demurrer.

The evidence submitted upon the trial of the case, material to the issues made by the pleadings, was substantially as follows: proof was admitted that prior to April 18, 1963, Pearle Optical of Monroeville, a corporation, operated offices at 215 Broad Street in Rome, Ga., under the name "Pearle Optical" and that in large lettering the words "Pearle Optical" appeared on the window of the establishment. At this time, the respondent Henderson was employed by the corporation as an optometrist. His work was to perform refractions, that is, to examine eyes and fit glasses and lenses sold by the corporation to its customers. Charges for Henderson's professional services were included in the prices charged for the lenses and glasses and the total amount was collected and retained by the corporation. The corporation advertised extensively, by cards placed in the windows of its offices and in newspaper advertisements, the low costs of glasses and lenses, which included the services of the optometrist who did the refractions, or fitted them.

On April 18, 1963, the Judge of Floyd Superior Court in a case brought by the State Board of Examiners in Optometry against Pearle Optical of Monroeville, Inc., and James P. Henderson entered a decree reading in part: "the individual defendant James Perry Henderson, as a practicing licensed optometrist, shall conform to and comply with the reasonable rules and regulations adopted and promulgated by the Georgia State Board of Examiners in Optometry governing the practice of optometry pursuant to the laws of Georgia." On October 10, 1963, this court affirmed the decree.

Upon the final determination of the case enjoining Pearle Optical of Monroeville, Inc., from practicing optometry in Georgia, according to the respondent's evidence, Raymond Curtis Wall, an optometrist, up to that time an employee of Pearle Optical of Monroeville, on September 1, 1964, leased the building and equipment then being used by the corporation and Henderson in the practice of optometry and the sale of glasses and lenses, and he became Henderson's employer. According to the respondent's witness Wall's own testimony, he continued to operate the business under the name "Pearle Optical," the sign on the window remained unchanged and the place was advertised in newspapers in the same manner as before the decree was entered, as "Pearle Optical," and continued to publish the low prices of lenses and glasses that were sold at the 215 Broad Street location. It was proved that Wall registered the name of the business as "Dr. R. C. Wall d/b/a Pearle Optical," but so far as the record shows no notice was publicly given even as to the change in ownership of the place. The respondent, when sworn as a witness, testified in answer to the question, "You have filled out name of business there, where it says Pearle Optical; Is that correct or incorrect?": "Well, that is the name of the place where I do refractions." Wall testified that he intended to do advertising under the name "Pearle Optical" and that was the name he was doing business under. Mrs. Henderson, the respondent's wife and the manager of the establishment, testified that after September 1, 1964, advertisements were in the name of "Pearle Optical"; that prior to that date they were in the same name; that before and after September 1, 1964, the sign on the place of business was "Pearle Optical"; that the sign remained in the same place, unchanged.

There was evidence that Henderson, when at work, wore a name plate or name tag reading "Dr. James Henderson, Optometrist," but both Henderson and his wife testified he had the name plate before, as after, Wall took over the "Pearle Optical" offices. A little sign bearing the notation "Dr. James P. Henderson, Optometrist" appeared in the show window, as well as a sign at the door of the refraction room bearing the same lettering. It also appeared that in the room where Henderson did his work there were his diploma, his license from the State and a picture of his graduating class. However, his wife testified that photographs, introduced as respondent's exhibits, showing the above signs portrayed conditions under which Henderson had practiced optometry ever since she had known him. She also testified, after relating that the advertisements of prices charged by "Pearle Optical" at 215 Broad Street, Rome, both in newspapers and placards in the window of the establishment, that before September 1, 1964, when people came into the office and said to her, "I saw your advertisement and I want some glasses," then she referred them "back to the refractory room to Dr. Henderson"; that since September 1, 1964, when patients came in and made such a statement to her, she also referred "them back to Dr. Henderson." She also testified in answer to counsel's question: "Q. Mrs. Henderson, I'll ask you whether or not any time anyone comes in and asks for any particular person that they want to see in the Pearle Optical place? A. Yes, sir. Q. And who did they ask for? A. Dr. Henderson." The testimony of Mrs. Henderson was that Pearle Optical, operated under that name by Dr. Wall, continued to charge one lump sum for lenses and glasses and the respondent's services.

The board introduced documentary evidence and the respondent also submitted documentary evidence.

The trial judge passed an order holding the respondent in contempt of the Superior Court of Floyd County and providing: "The petitioner has presented evidence showing that the defendant Henderson is carrying on the practice of optometry in Rome, Georgia, under the name `Pearle Optical' in violation of Rule F (11) of the Georgia State Board of Examiners in Optometry; and the court finds as a fact that the defendant Henderson is carrying on the practice of optometry in Rome, Georgia, under the name `Pearle Optical', in violation of said rule and in violation of this court's judgment rendered in the original case entered April 18, 1963." To this order the respondent excepted and brought the case here for review.

QUILLIAN, Justice.

1. The bill of exceptions assigns as error the overruling of ground 1 of the respondent's demurrer: that the petition fails to set forth a cause of action for attachment in contempt. This court held in Pearle Optical v. State Board, 219 Ga. 364 ( 133 S.E.2d 374), that the trial court decree was valid. The decree, among other things, required: "the individual defendant James Perry Henderson, as a practicing licensed optometrist, shall conform to and comply with the reasonable rules and regulations adopted and promulgated by the Georgia State Board of Examiners in Optometry governing the practice of optometry pursuant to the laws of Georgia." The petition sufficiently alleged the respondent in disobedience to the decree carried on the practice of optometry in violation of Rule F (11), Rule F (14) and Rule I of the board.

Courts have inherent power to enforce their decrees. See Code §§ 24-105, 24-2615 and 37-1208. We think the petition set forth cause for contempt against the respondent.

2. The bill of exceptions assigns the overruling of ground 4 of the respondent's demurrer to the application for attachment for contempt as error. The ground alleges "that Rule I of the rules and regulations adopted by the State Board is unreasonable, invalid and unconstitutional for the reason that it is in contravention of" the due process provision of the Georgia Constitution. Art. I, Sec. I, Par. III ( Code Ann. § 2-103). Respondent contends Rule I contravenes and is in violation of the constitutional provision "because it is too vague and indefinite to provide an understanding of the conduct which it seeks to prohibit." Rule I reads: "All optometrists licensed by the Board to practice optometry in the State of Georgia are prohibited from doing any of the acts of highly unprofessional conduct which are set forth in Rule F of these rules; and the doing of any of said prohibited acts by a licensed optometrist shall be a violation of Rule F and this rule." The provisions of the rule attacked are plain and explicit. The ground is without merit.

3. The final assignment of error is that the judgment holding the respondent in contempt was not supported by the evidence. There was evidence that the establishment where the respondent practiced optometry was operated under the name "Pearle Optical." Indeed, in his communication to the Secretary of State, the respondent unequivocally stated: "Name of Business: Pearle Optical." His own testimony was, in response to the question, "You have filled out name of business there, where it says Pearle Optical; Is that correct or incorrect?": "Well, that is the name of the place where I do refractions." The alleged owner of the business, one Wall, whose name was not disclosed in any of the newspaper advertising of the business, certified to the Secretary of State that the business was operated under the name "Dr. R. C. Wall d/b/a Pearle Optical." The advertisements offered contact lenses and glasses at stated prices, which included the refractions or examinations made by the optometrist working at the place of business. According to the evidence, the respondent made no separate charge for his professional services but such cost was included in the price of the lenses or glasses. There was evidence that a little sign bearing the letters, "Dr. James P. Henderson, Optometrist," appeared in the window of the Pearle Optical place of business, but there was still the large "Pearle Optical" sign on the window, and signs in the window advertising "Contact Lens, One Price Only, $75." There was likewise a small sign at the door of the room where the respondent did refractions, or examinations, similar to the one in the window, upon which his name appeared, also inside the room the only signs appearing upon the wall were the respondent's diploma, his licenses and class picture. However, his wife testified that when a patient came in and said, "I saw your advertisement and I want some glasses," she referred the patient to the refractory room of Dr. Henderson; and that the described conditions were the same before as after September 1, 1964. We think the evidence submitted upon the trial was sufficient to support the conclusion that the respondent was practicing in violation of Rule F (11) which proscribes as highly unprofessional conduct "the practice of optometry under any name other than his or her own proper name and the name used in the practice of optometry shall be the same name as used in his or her license or certificate issued by the Board," and hence was violating the previous decree of the trial court, affirmed by this court in Pearle Optical v. State Board, 219 Ga. 364, supra.

We have considered the fact that the small sign was in the window bearing his name; that he wore the name plate with his name on the same; and that on a desk adjacent to the refraction room where he worked was displayed a sign reading: "Dr. James Henderson, Optometrist." In view of the facts above related, however, and particularly that he admitted the establishment conducted its business under the name "Pearle Optical," and it clearly appearing from the fact that Pearle Optical was advertising glasses and lenses at "one price only," which necessarily included the examination and fitting of the glasses, that the signs referring to the respondent as an optometrist had only the effect of holding him out to the public as an optometrist practicing under the "Pearle Optical" name and performing the services for the concern that it afforded to its customers along with and as a part of the costs of lenses and glasses sold by it.

We are also cognizant that the respondent's wife testified: "Q. Mrs. Henderson, I'll ask you whether or not any time anyone comes in and asks for any particular person that they want to see in the Pearle Optical place? A. Yes, sir. Q. And who did they ask for? A. Dr. Henderson." But she also testified that when a patient came in and said, "I saw your advertisement and I want some glasses," that she "referred them back to the refractory room to Dr. Henderson." The part of her testimony first quoted really showed no more than that the people who came in were aware Dr. Henderson worked for Pearle Optical and was an integral part of that concern's enterprise in furnishing lenses or glasses and the services of a licensed optometrist at one stated price. But clearly her other testimony was that when Pearle Optical customers came in off the street and just wished to buy glasses or lenses as advertised by Pearle Optical, they were referred to Dr. Henderson to render that part of the services to be accomplished by Pearle Optical. There being evidence from which the trial judge, as the trior of fact, could find Henderson violated Rule F (11) and the court's previous decree requiring the respondent to obey the reasonable rules of the board, his judgment can not be disturbed.

Judgment affirmed. All the Justices concur, except Duckworth, C. J., who dissents, and Mobley, J., not participating for providential cause. Cook, J., disqualified.