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Smt fJ W I*JLHBRJ Law for the Dentist 
by 
Leslie Childs 
Published by 
The Dental Cosmos 
Lock Box 1615 
PHILADELPHIA Copyright 1023 by Leslie Childs Contents. 
Chapter Page 
I. Right of Unlicensed Person to 
Own and Operate a Dental 
Office 5 
II. Right of State to Impose Edu- 
cational Qualifications Upon 
All Persons Seeking to Prac- 
tice Dentistry Within Its 
Borders 13 
III. Validity of Contract Forbidding 
Dentist’s Assistant from Com- 
peting with His Employer 
After Termination of Em- 
ployment 18 
IV. Liability of Dentist for Injury 
to Patient Caused by Infec- 
tion After Treatment 2\ 
U. Power of State Dental Board to 
Determine Character of Col- 
lege Relative to Licensing Its 
Graduates 37 
17. Judicial Construction of Con- 
tract Selling the “Good-Will” 
of a Dental Practice l/o 
VII. On Collecting for Dental Serv- 
ices Rendered to Minors 52 
17/7. On Collecting for Dental Serv- 
ices Rendered to Married 
Women 62 
IX. Dental Instruments as “Tools” 
Within Meaning of Statutes 
Exempting Such from Execu- 
tion 73 
X. Judicial Construction of Con- 
tracts in Restraint of Trade 
Made in Connection with the 
Sale of a Dental Office 79 
XI. Judicial Construction of Stat- 
utes Providing for the Revoca- 
tion of Dental Licenses for 
Cause 90 
3 4 
CONTENTS. 
Chapter Page 
XII. Right of Physician and Surgeon, 
by Virtue of His License as 
Such, to Practice Dentistry.. 103 
XIII. What Constitutes “The Prac- 
tice of Dentistry” Within 
Meaning of Dental Practice 
Statutes 113 
XIV. Right of Dentist to be Excused 
from Jury Duty as a “Prac- 
titioner of Medicine” 127 
AT. Duties and Liabilities of Dentist 
in the Administration of Anes- 
thetics 137 
XVI. Judicial Construction of Libel 
and Slander of Dentist in His 
Professional Capacity 11/8 
XVII. Limitations Upon the Practice 
of Dentistry in Respect to 
Overlapping into tire Field of 
Medicine of General Surgery 158 
XVIII. Judicial Construction of Evi- 
dence Relative to Degree • of 
Care Exercised in the Prac- 
tice of Dentistry /dj 
XIX. Judicial Construction of Insur- 
ance Policy Indemnifying Den- 
tist Against Damage Suits 
Based on Alleged Malpractice 17\ 
XX. Dissatisfaction of Patient with 
Dental Services Rendered as 
a Defense to Action for Pay- 
ment 181 
XXI. Judicial Construction of Writ- 
ten Warranty of Dental Work 188 
XXII. Dentist as Medical Practitioner 
in Respect to Privileged Com- 
munications Made by Patient 103 
XXIII. Dental Rooks as Being Within 
the Terms of Insurance Policy 
Insuring “Instruments, Appli- 
ances and Material Incidental 
to a Dental Office” 107 
XXIV. Legality of Contract by Dentist 
to Furnish Patient Dental 
Services for Life 200 CHAPTER I. 
Right of Unlicensed Person to Own 
and Operate a Dental Office. 
The right of a State to prescribe 
qualifications for those seeking to prac- 
tice dentistry has been generally upheld 
by the courts. This on the broad theory 
that the actual work of dentistry re- 
quired peculiar knowledge and skill, and 
the pidfiic was entitled to this protection 
from unqualified or incompetent persons 
who might seek to practice this profes- 
sion if certain standards were not in- 
sisted upon. 
So far so good, and so long as the 
lawmakers have confined such regula- 
tions to those seeking to personally prac- 
tice dentistry they have been upheld. 
But when such acts have gone beyond 
this, and sought to enforce the same 
requirements upon one merely seeking 
to own or operate a dental office, they 
have not fared so well at the hands of 
the courts. This on the grounds that 
the reasons for the enforcement of cer- 
5 6 
LAW FOR THE DENTIST. 
tain qualifications upon those seeking 
to personally practice dentistry, did not 
apply where the mere right to own or 
operate a dental office was claimed. 
Perhaps the leading case on the sub- 
ject is State vs. Brown, 37 Wash. 635. 
And while this is not the latest decision 
on the point, yet owing to the facts in- 
volved and the clear reasoning of the 
court in deciding the question at issue, 
it becomes an interesting and valuable 
case. The circumstances leading up to 
the action were substantially as follows: 
Statute Forbids Unlicensed Person To 
Own Dental Office. 
The Washington Legislature passed 
an act which, greatly abbreviated, pro- 
vided as follows: 
Any person .... seeking to practice 
dentistry in the State of Washington, or to 
own, operate or cause to be operated, or to 
run or manage a dental office .... shall 
file his or her name, together with an appli- 
cation for examination, with the secretary 
of the State Board of Dental Examiners, and 
undergo examination before that 
body .... Any person who, . . . . 
shall owrn, run, operate or cause to be oper- 
ated, or manage a dental office .... with- LAW FOR THE DENTIST. 
7 
out having first filed for record .... a 
certificate from said board of dental exam- 
iners .... shall be deemed guilty of mis- 
demeanor .... 
Brown the defendant was tried and 
convicted under this statute for owning 
and operating a dental office. From the 
judgment of the lower court he prose- 
cuted an appeal to the Supreme Court 
of Washington. In stating the question 
before it for decision the court, among 
other things, said: 
The question is now presented as to the 
power of the legislature to enact a hew 
requiring an examination by and license from 
the State Dental Board, as a prerequisite to 
“owning, running and managing a dental 
office or department.” Appellant (Brown the 
defendant) contends that this is an unwar- 
ranted infringement of a natural and consti- 
tutional right. Respondent (the State) 
maintains that it is justifiable as a legiti- 
mate exercise of the police power of the 
State .... 
After the foregoing statement the 
court reviewed many authorities bearing 
on the right of the legislature, under its 
police power, to prescribe qualifications 
for those who desired to engage in the 
learned professions. In this connection 8 
LAW FOR THE DENTIST. 
it was pointed out that the right of 
the legislature to prescribe certain 
standards for one seeking to “practice 
dentistry” was not open to question. 
Seasons were assigned for this exercise 
of power by the legislature, and the 
court then in addressing itself to the 
issues in the instant case, among other 
things, said: 
But are the reasons herein assigned ap- 
plicable to a statute requiring an examina- 
tion by and license from a dental board before 
one may “own, run, or manage” a dental 
office? Does the police power authorize the 
enactment of a statute* making this require- 
ment? .... It is solicitude for the physi- 
cal well-being of the public, or that portion 
that may need dentistry work, which justifies 
that part of the statute providing for the 
examination and licensing of those who de- 
sire to “treat diseases or lesions of the 
human teeth or of jaws or correct mal- 
positions thereof.” To perform such work 
with safety and proper regard for health and 
comfort, the operator must possess tech- 
nical and skill peculiar to the 
study and practice of dentistry. 
Can the same be said of one desiring to 
own, run, or manage a dental office? We 
think not. To own and manage property is 
a natural right, and one which may be re- 
stricted only for reasons of public policy, LAW FOR THE DENTIST. 
9 
clearly discernible. To hold this portion of 
the statute valid would be to make possible 
conditions which were never designed to 
exist . . . 
No License Required to “Own” Dental 
Office. 
A consideration of the province of the 
police power, in the light of constitutional 
rights, would seem to show, beyond contro- 
versy, that in the enactment of this portion 
of the statute the legislature transcended its 
authority. Should the owner or manager 
hire operators not legally qualified, . . . . 
they would, of course, be amenable to punish- 
ment under those provisions. But we are 
unable to say or perceive that the health, 
moral, or physical welfare of the public, or 
any of the personal' or property rights of its 
individuals, are endangered by the owner- 
ship and management of a dental office so long 
as those employed therein to do the actual 
dentistry work are qualified and licensed/as 
by law required .... 
The Supreme Court thereupon re- 
versed the judgment of the lower court, 
and gave instructions that the action be 
dismissed, holding, as outlined above, 
that one need not be a licensed dentist 
in order to engage m the operation or 
management of a dental office. 
As noted heretofore the foregoing 10 
LAW FOR THE DENTIST. 
Washington decision is perhaps the best 
illustration the books contain of the 
reasoning of the courts on the question 
under discussion. The case was well con- 
sidered and, in the light of constitutional 
rights, the court’s conclusions are un- 
questionably in accord with the weight 
of authority. 
Addendum. 
The Editor has suggested that, in the 
light of the foregoing Washington de- 
cision, an interesting question arises as 
to the responsibility should an action 
be brought in the event of malpractice 
by a qualified and licensed dentist in 
the employ of an owner of a dental 
establishment who was not a licensed 
practitioner. This is an engaging point 
which has doubtless occurred to many 
readers of the foregoing article, though 
it escaped the writer when the article 
was being prepared. 
In this connection it would seem, on 
general legal principles, that the ag- 
grieved person might have a cause of 
action against both the proprietor and 
the licensed employee, depending upon 
the nature and circumstances of the act LAW FOR THE DENTIST. 
11 
of malpractice. But, in any event, it 
seems clear that the proprietor would be 
liable, this assuming that the act of the 
licensed employee was committed within 
the scope of his employment. The ques- 
tion was passed upon in an interesting 
manner in Hannon vs. Siegel-Cooper 
Company, 1G7, N. Y. 244, under the 
following facts: 
The Siegel-Cooper Company, a cor- 
poration engaged in conducting a 
department store, was alleged to have 
held itself out as maintaining a dental 
department. The plaintiff sought the 
services of this dental department, and 
thereafter brought the above styled ac- 
tion against Siegel-Cooper Company for 
malpractice. This on the ground that a 
servant in their employ in the said den- 
tal department carelessly, negligently, 
and wilfully injured the plaintiff’s 
gums and jaws, while rendering the serv- 
ices requested. 
The trial of the case in the lower 
court resulted in a judgment in favor 
of the plaintiff. On appeal the court 
seemed to think that the defendant had 
exceeded its power in conducting a den- 
tal establishment, but held that this 12 
LAW FOR THE DENTIST. 
would not relieve it from liability. In 
this connection it was said: 
But though it was beyond the corporate 
powers of the defendant to engage in the 
business, this does not relieve it from the torts 
of its servants committed therein . . . 
The plaintiff had a right to rely not only 
on the presumption that the defendant would 
employ a skilful dentist as its servant, but 
also on the fact that if that servant, whether 
skilful or not, was guilty of any malpractice, 
she had a responsible party to answer there- 
for in damages. 
The judgment rendered against the 
Siegel-Cooper Company in the lower 
court was thereupon affirmed. Holding 
in effect that even though the corpora- 
tion had gone beyond its corporate 
powers in conducting a dental establish- 
ment, yet it could not escape liability for 
the acts of its servants in so doing. CH A PTER II. 
Right of State to Impose Educa- 
tional Qualifications Upon All 
Persons Seeking to Practice Den- 
tistry Within Its Borders. 
That a State has the right to pre- 
scribe reasonable qualifications for those 
seeking to practice dentistry within its 
borders is no longer an open question. 
And so long as statutes of this kind have 
not discriminated between persons seek- 
ing to engage in this profession they 
have been declared valid and upheld by 
the courts. 
It follows, then, that the principal 
question in perhaps the majority of these 
cases has been whether or not the statute 
being construed was discriminatory. 
And, in this connection, the right of a 
State to enforce its requirements upon 
members of the profession from other 
States, who sought to practice within its 
borders, has been a prolific source of liti- 
gation. It has been earnestly contended 
in a number of these cases that the en- 
forcement of such requirements in one 
13 14 
LAW FOR THE DENTIST. 
State, against duly licensed dentists of 
another, was in violation of constitu- 
tional rights. 
But, by the great weight of authority, 
the courts have declined to uphold this 
contention, and have held that a license 
to practice dentistry in one State gives 
no vested right to practice in another. 
And that each State has the right to ex- 
clude from the practice those who can- 
not or will not meet the requirements 
prescribed, and the fact that the appli- 
cant is a licensed dentist of another 
State does not change the rule. The ap- 
plication of this rule is illustrated in an 
interesting manner in People vs. Gris- 
wold, 213 Y. Y. 92; 106 Y. E., 929, 
under the following circumstances: 
Griswold was convicted of practicing dentis- 
try without a license in the State of New 
York. He had, it appears, practiced dentistry 
in other States since 1881 and was licensed to 
practice in the States of Kansas and Utah. 
From his conviction in the lower court an 
appeal was taken in which, among other 
tilings, the section of the New York act which 
prescribed that applicants for examination for 
a dental license must have had a preliminary 
education equivalent to graduation from a 
four-year high school course, was attacked. LAW FOR THE DENTIST. 
15 
Griswold contended that the enforcement of 
this section closed the examination to him, 
regardless of his actual qualifications as a 
dentist and his many years of experience in 
other States. Setting up that when he began 
the study and practice of dentistry no such 
qualifications were demanded. Contending 
that the enforcement of this section precluded 
him from following a lawful calling, and was 
unreasonable, arbitrary and discriminatory, 
and in violation of rights guaranteed him 
under the State and Federal Constitution. 
In passing on this contention the Hew 
York Court of Appeals, after first con- 
cluding that the requirement of a pre- 
liminary education equivalent to a four- 
year high school course was neither 
arbitrary nor unreasonable, in part, 
said: 
It may seem hard that the defendant, who 
has practiced dentistry for many years in 
other States, cannot be licensed here, or even 
permitted to take an examination to test 
his qualifications, until he first acquires the 
requisite preliminary and professional educa- 
tion; but it is difficult, if not impossible, to 
make a classification which will not in par- 
ticular instances seem unjust. All in the 
same case as the defendant are treated alike. 
His fundamental error consists in the assump- 
What the Court Decided. 16 
LAW FOR THE DENTIST. 
tion that a license to practice dentistry in 
one State confers the like right in all other 
States, whereas such license is recognized, if 
at all, only on principles of comity. When 
the appellant (Griswold) came into this State 
he fell into the class of those who had never 
been licensed, unless the Legislature saw fit 
to recognize the previous* experience of those 
in the like case. 
We find nothing in the statute which can 
fairly be said to discriminate in any way 
against the citizens of other States. The 
privileges and immunities secured to citizens 
of each State in the several States by the 
Federal Constitution are the privileges and 
immunities enjoyed by the citizens in the lat- 
ter States, and are not the special privileges 
enjoyed by the citizens in their own States. 
. . . As a citizen of the United States, the 
defendant is not privileged to practice den- 
tistry in this State without a license so to 
do. . . . 
The defendant Griswold in the appeal 
also attacked the section of the New 
York statute as being discriminatory, 
in which it was provided that duly 
licensed dentists in the State prior to 
August 1, 1895, should be deemed to be 
licensed to practice dentistry. In dis- 
posing of this objection the court said: 
The appellant has no grievance from the 
provision that those duly licensed and regis- LAW FOR THE DENTIST. 
17 
tered as dentists in this State prior to the 
1st day of August, 1895, are deemed licensed 
to practice. It is the rule for such acts to 
preserve the status of those lawfully engaged 
in the pursuit regulated. As said in the 
United States Supreme Court: “The 14th 
Amendment does not forbid statutes and stat- 
utory changes to have a beginning, and 
thus to discriminate between the rights of an 
earlier and later time.” Sperry & H. Co. v. 
Rhodes, 220 U. S., 502; 55 L. ed. 561; 31 
Sup. Ct. Rep., 490. . . . 
The foregoing decision was carefully 
considered and is in accord with the 
weight of authority. It illustrates in a 
clear manner the reasoning usually fol- 
lowed by the courts in upholding the 
rights of a State to enforce its regula- 
tions relative to qualifications of those 
seeking to practice dentistry within its 
jurisdiction. It also points out in a 
clear manner that this is a subject en- 
tirely within the province of each legis- 
lature, and the fact that an applicant 
is a licensed dentist in another State 
does not in itself confer a right of ex- 
emption from the operation of such 
regulations. CHAPTER III. 
Validity of Contract Forbidding 
Dentist’s Assistant from Compet- 
ing with His Employer After Ter- 
mination of Employment. 
To the established dentist, who seeks 
to employ an assistant dentist, the 
question of the scope of the contract of 
employment is deserving of careful con- 
sideration. In the first place the em- 
ploying dentist will demand a com- 
petent, skilful assistant, one qualified to 
meet in a professional manner his friends 
and patrons; and in the natural order 
of things such an assistant, if he stays 
in the employment a reasonable length 
of time, will build up a personal follow- 
ing that will inure to the benefit of his 
employer. 
It follows, that in the majority of 
such cases the employing dentist will 
desire assurance that the other will re- 
main in the employment a reasonable 
length of time. And further that he 
will not use his position as a means of 
18 LAW FOR THE DENTIST. 
19 
acquiring a personal following with the 
idea of later on opening a competing 
office. 
In a situation of this kind the employ- 
ing dentist will in all probability seek 
the desired protection by the insertion 
of restrictive covenants in the contract 
of employment. In other words by a 
contract which by its terms forbids the 
assistant from competing with the other 
within certain time and territory after 
the termination of the employment. 
Contracts of this kind are as a gen- 
eral rule valid and enforceable provid- 
ing their restrictions are not unreason- 
able. On the other hand, if the restric- 
tions are unreasonable such a contract 
may prove of no value whatever, as the 
courts may decline to enforce its terms. 
Just what will amount to a reasonable 
and valid contract of this kind usually 
depends upon the facts of each indi- 
vidual case, because of which the sub- 
ject can hardly be covered by a hard and 
fast rule. 
However, as a general proposition, 
though there are some exceptions, the 
courts will uphold a contract entered into 
by members of a learned profession in 20 
LAW FOR THE DENTIST. 
which one becomes the assistant of the 
other with the understanding that he 
will not later become a competitor within 
specified territory. The territory speci- 
fied, however, must he only of reasonable 
extent considered in the light of the 
employer’s practice. The application of 
this rule of construction is illustrated 
in an interesting manner in Turner v. 
Abbott, 94 S. W. G4; the facts as gath- 
ered from the report being substantially 
as follows: 
Dentist Employs Assistant Under Re- 
strictive Contract. 
Turner, an established dentist in Union 
City, Tenn., had need of an assistant in the 
conduct of his practice, and employed Abbott 
in such capacity. Abbott was also a dentist, 
but without an established practice, as be 
had but recently been graduated at the time 
of the contract. 
By the terms of the contract Abbott was to 
receive $100 per month, and it was agreed 
that he would not thereafter open an office 
or practice dentistry in competition with Tur- 
ner in Union City or the immediate vicinity. 
The contract was for an indefinite period, and 
Abbott remained in the employment seven 
months, after which he formed a partnership 
with another dentist in Union City, and pre- 
pared to practice his profession at that place. LAW FOR THE DENTIST. 
21 
Turner thereupon objected on the grounds 
that this was in violation of their contract, 
and the matter culminated in Turner filing 
the instant suit in which it was sought to 
restrain the other from practicing dentistry 
in Union City. Abbott answered and denied 
that he had agreed not to practice dentistry 
in competition to Turner when his employ- 
ment had come to an end. However, after 
proof had been taken the chancellor decreed 
that the contract was as alleged by Turner, 
and granted an injunction against Abbott. 
From this decree Abbott prosecuted 
an appeal to the Tennessee Supreme 
Court. The appeal involved, among 
other things, the question of whether or 
not the restraining terms of the con- 
tract were unlawful as being in restraint 
of trade, and against public policy. In 
passing upon this phase of the case the 
court announced the general rule to be 
as follows: 
The general rule on this subject, deducible 
from the authorities, is that a contract in 
general restraint of trade—that is, not to en- 
gage in one’s trade or profession at any place 
in the realm,—is void as being contrary to 
public policy; but a contract not to engage 
in one’s business or profession at a particular 
place, or for a period of time, is' not invalid 
as being contrary to public policy; but such 
contracts will be upheld and enforced. . . . 22 
LAW FOR THE DENTIST. 
The court then proceeded to examine 
many authorities in which the foregoing 
rule had been applied upon the par- 
ticular facts involved. Then addressing 
itself to the facts of the instant case it 
said in conclusion: 
What the Court Decided. 
In the present case, the defendant [Abbott] 
was paid for his services a salary of $100 per 
month, which was large compensation to a 
young man who had just graduated, and, 
under the authorities, it was perfectly com- 
petent for the parties to make the contract 
in question which only prohibits the future 
competition in Union City and vicinity. We 
think this contract was reasonable and not 
oppressive; nor was it in any way detrimental 
to the interests of the public. ... 
The Supreme Court thereupon af- 
firmed the decree of the chancellor, 
holding, as stated above, that the con- 
tract in question was valid, and by its 
terms Abbott would not be allowed to 
practice his profession in competition 
with Turner, his former employer in 
Union City or vicinity. 
The language of the court makes it 
clear that had the contract in question 
been one in general restraint it would LAW FOR THE DENTIST. 
23 
not have been enforced. But as the re- 
straining- terms applied only to Union 
City and vicinity, it was plain that this 
was no more than a reasonable protec- 
tion to accord the plaintiff in his prac- 
tice. 
The case was well considered and is 
without doubt in accord with the weight 
of authority on the particular point de- 
cided. And so far as the writer has 
been able to discover it is one of the 
clearest cases the books contain in which 
the parties and question involved con- 
cerned the dental profession. 
Truly it is a.11 interesting decision for 
dentists to have in mind when entering 
into contracts of this character. C H A PTER IV. 
Liability of Dentist for Injury to 
Patient Caused by Infection After 
Treatment. 
Of the reported cases on malpractice 
against dentists quite a number have 
been predicated on injuries suffered 
through infections which developed after 
treatment. These cases are surprisingly 
similar in their facts; the aggrieved pa- 
tient has usually been suffering from 
aching teeth or gums, and applying to 
the dentist has had the teeth or possibly 
hidden roots extracted; thereafter an in- 
fection of the disturbed region developed 
which in many cases caused severe in- 
juries. 
All right. Now, it is not surprising 
that the patient should trace his trouble 
back step by step, and conclude that it 
was caused through some improper or 
negligent act of the dentist. The latter 
may have exercised every reasonable pre- 
caution, the infection may have been 
present before he was appealed to, yet 
24 LAW FOR THE DENTIST. 
25 
the circumstances may be such that the 
patient honestly believes that he (the 
dentist) was to blame. 
In a situation of this kind are to be 
found all the ingredients of a long and 
hitter lawsuit; and if the patient brings 
his action for damages against the den- 
tist, the question of what he must prove 
to recover becomes one of considerable 
interest to all concerned. Generally 
speaking, in actions of this kind the 
burden is on the plaintiff to prove negli- 
gence on the part of the defendant, 
and, further, that such negligence was 
the proximate cause of the injury com- 
plained of. The application of this rule 
is illustrated in an interesting manner 
in the recent case of Matuschka vs. 
Murphy et til., a Wisconsin case reported 
in 180 N”. W. 821, under the following 
facts: 
Aching Teeth Extracted; Infection 
Develops. 
The plaintiff, Matuschka, was suffer- 
ing with toothache and called at the 
office of the defendant Murphy, who 
was practicing dentistry in Milwaukee. 
Murphy was not in the office, it appears, 26 
LAW FOR THE DENTIST. 
but his employee Stromberg, another 
dentist, was, and the latter extracted the 
aching tooth for the plaintiff. 
According to the report Stromberg 
injected a 2 per cent, novocain solution 
before extracting the tooth for the pur- 
pose of deadening the peripheral nerves. 
The tooth was then divided and taken 
out in two parts; a pus sac was attached 
to one root but none to the other. The 
socket was not curetted, but it was 
washed out with boric acid and swabbed 
liberally with iodin. 
This extraction was performed on 
Saturday, and on Monday the plaintiff 
returned to the defendant’s office, as 
there was much swelling. Stromberg 
washed out the socket, painted it with 
iodin, instructed the plaintiff to keep it 
clean and to return that afternoon. In 
the afternoon the same procedure was 
followed. Tuesday morning the plaintiff 
again called and the swelling was still 
present. Stromberg washed out the 
socket with boric acid, painted it with 
iodin, and did the same thing on Tues- 
day afternoon. Plaintiff returned on 
Wednesday, and the condition of his 
jaw was such that Stromberg referred 
him to Dr. Wenker. LAW FOR THE DENTIST. 
27 
Dr. \\renker upon examination dis- 
covered a serious infection. lie curetted 
the socket from which the tooth had 
been drawn, made incisions through the 
cheek and gums, put in packing, and 
thereafter removed seven teeth and a 
portion of the jaw-bone. 
Thereafter the instant action was 
brought against the dentist Murphy and 
his employee Stromberg for damages. 
This action was based on the theory that 
the injuries resulting from the infection 
were caused by the improper practice of 
Stromberg in extracting the tooth and 
in the after-treatment. The plaintiff, 
among other things, testified that 
Stromberg when extracting the tooth in- 
jected the needle into his lip, then with- 
out resterilization injected it into the 
gum. This was, however, denied by 
Stromberg. 
The trial of the case, which was be- 
fore a jury, resulted in a judgment in 
favor of the plaintiff for $10,000. Upon 
motion the court gave the plaintiff the 
option of taking $4,745, or a new trial. 
The plaintiff accepted the reduced judg- 
Suit Brought Against Dentist.  LAW FOR THE DENTIST. 
ment, and the defendants prosecuted an 
appeal to the Supreme Court of Wis- 
consin. Here, in reviewing the record 
and in announcing the rule relative to 
the burden of proof which rested upon 
the plaintiff, it was, in part, said: 
While there is sufficient evidence in the 
record to sustain a finding that the defendant 
Stromberg did fail to exercise such reasonable 
care and skill as was ordinarily possessed 
and exercised by dentists in good standing, 
of the same system or school of practice at 
the time in question, we find a total absence 
of proof to support the further fact, essentia] 
to a recovery, namely, that such want of 
care and skill was the proximate cause of 
plaintiff’s injuries. 
That plaintiff's painful experience and its 
lamentable results were due to an infection 
of the lower jaw is conceded. The question 
is, what caused the infection? In order to 
recover against the defendants, plaintiff 
must produce evidence from which the jury 
is justified in finding that it was due to the 
want of care and skill of the defendant 
Stromberg. This burden is not met by show- 
ing that it might have been the result of two 
or more causes, one of which was defendant’s 
unskilful treatment. . . . 
The court next directed its attention 
to a careful review of the expert testi- 
28 LAW FOR THE DENTIST. 
29 
mony bearing on the probable cause of 
the plaintiff’s infection. This evidence 
did not show with any degree of cer- 
tainty that the methods followed by the 
defendant Stromberg were the proximate 
cause of the plaintiff’s injuries. The 
court quoted from the testimony of one 
of the expert witnesses as follows: 
It is a fact tliat with an infectious process 
it is absolutely impossible for a surgeon or 
any one to foretell exactly how the infection 
will progress. The influence of the injection 
into the gums, as outlined, for the purpose of 
producing anesthesia, in my opinion did not 
have any influence upon the progress of the 
disease. The number of bacteria that might 
be introduced by such a method of procedure 
as you have outlined, that is, the penetrating 
of the lip with the needle, compared with 
those that were already present, is so small 
that it would be purely speculative to say 
that they had any influence whatever in the 
progress. 
The court then addressing itself to 
the situation as a whole, in the light of 
all the evidence, and in announcing its 
conclusion said: 
Dentist Held Not Liable. 
Plaintiff had a chronic infection of the 
lower jaw, of long standing, when he went to the defendant’s office for treatment. It 
was impossible to foretell the future progress 
of that infection. The subsequent results 
could have followed from it without the pull- 
ing of the tootli and the subsequent treat- 
ment of the jaw according to tbe most exact 
scientific methods. They might also have fol- 
lowed from defendant Stromberg’s negligent 
and improper practice and treatment. Which 
was the cause of the ultimate results cannot 
be told with any degree of certainty. While 
the experts differed as to the probability of 
the efficient cause, they conceded the possi- 
bility of any one of several causes. Where 
we have a result which may be attributed to 
one of two causes, it is not surprising that 
experts will differ as to the real cause. It 
emphasizes the fact, however, that any con- 
clusion with reference thereto is mere conjec- 
ture and falls far short of that certainty 
which the law requires for the support of 
verdicts. Our conclusion is that the verdict 
of the jury, in so far as it finds that the 
want of care and skill on the part of Strom- 
berg was the proximate cause of plaintiff’s 
injuries, is unsupported by the evidence and 
cannot be sustained. . . . 
The Supreme Court thereupon re- 
versed the judgment rendered in the 
lower court, with instructions to enter 
a judgment dismissing the plaintiff’s 
complaint, holding, as outlined in the 
opinion, that the plaintiff had failed to 
30 
LAW FOR THE DENTIST. LAW FOR THE DENTIST. 
31 
prove that the acts of the defendant 
had been the proximate cause of his 
injuries, which was essential if he were 
to recover. 
Another Case in Point. 
The foregoing is an interesting ancl 
valuable case on the question under dis- 
cussion and its holding is supported by 
much authority. And as the case turned 
on the element of proximate cause, a 
certain amount of evidence of negligence 
being introduced, it seems probable that 
the brief review of a similar case, in- 
volving negligence, may, in connection 
therewith, be entered into with profit. 
With this in view Angulo vs. Haller, a 
recent Maryland case reported in 112 
Atl. 179, will serve. The facts, greatly 
abbreviated, were as follows: 
The plaintiff had a tooth extracted 
and the dentist failed to remove all of 
the roots. Thereafter trouble developed, 
and after suffering for a month or 
more, she went to the office of another 
dentist, the defendant, and requested 
that the roots be extracted. This was 
on Sunday, and the defendant was not 
in his office but an employee, Hr. Sand- 32 
LAW FOR THE DENTIST. 
tier, was, and he extracted the roots. 
He also advised the plaintiff that if she 
experienced any trouble to return to 
the office for treatment. 
When the plaintiff reached her home 
her mouth was still bleeding. This con- 
tinued until the afternoon, at which 
time her jaw began to swell and the 
pain grew worse. She did not, it seems, 
notify the defendant of this, but the 
next day called in her family physician, 
Dr. France. 
Upon examination Dr. France dis- 
covered necrosis of the bone, and after 
treating her several days had her taken 
to a hospital. Here plaintiff underwent 
two operations. Upon the first Dr. 
France testified that, “Under general 
anesthetics I curetted the jaw and en- 
deavored to relieve the condition 
through an opening and scraped all the 
necrotic or soft granular hone out.” 
Upon the second operation two teeth 
were extracted and all the bone sur- 
rounding that which was involved was 
removed. Plaintiff was not troubled 
further and recovered. 
Thereafter the instant suit for dam- 
ages was filed against the defendant, LAW FOR THE DENTIST. 
33 
Dr. Angulo, on the theory that the in- 
juries suffered were caused by the negli- 
gence and unskilfulness of his employee, 
Dr. Sandtler. The trial in the lower 
court resulted in a judgment in favor 
of the plaintiff. The defendant ap- 
pealed, and the Court of Appeals, after 
first stating the rule as to the duty of 
the defendant to exercise reasonable 
care, used the following language rela- 
tive to the burden of proof to the con- 
trary resting upon the plaintiff: 
But while it is the duty of the professional 
man to exercise ordinary care and skill, a 
duty imposed upon him hy law, it will he 
presumed, in the absence of proof to the con- 
trary, that the operation or work done by 
him was carefully and skilfully done. And 
because of such presumption, want of skill or 
negligence cannot he presumed, hut must be 
affirmatively proven. Involved in the burden 
placed upon the plaintiff was the necessity 
of showing that the professional acts of the 
defendant, which are alleged to have produced 
the injury complained of, did in fact cause 
such injury. 
The court then proceeded to examine 
the evidence of record as to its proving 
this, and in doing this and in announc- 34 
LAW FOR THE DENTIST. 
ing its conclusion, it was, among other 
things, said: 
In this case there is little or no evidence 
showing that fact. The injury complained of 
was the condition of the jaw-bone and its re- 
sulting consequences after the extraction of 
the tooth ’by Dr. Sandtler. The evidence is 
that, on the next day after the visit of the 
plaintiff to Dr. Angulo’s office, Dr. France, 
the plaintiff’s physician, found a necrotic con- 
dition of the jaw-bone, which at that time had 
involved the muscles and gums surrounding 
the teeth, or, in other words, as he stated, 
he found the jaw-bone rotting, and he treated 
it by curetting the bone and taking there- 
from the rotten or decayed parts. Such an 
advanced necrotic condition of the jaw-bone 
could hardly have beep the result of anything 
that Dr. Sandtler did, or failed to do, on the 
previous day. . . . 
But whatever may be said as to the ques- 
tion, whether the injury complained of re- 
sulted from the extraction of the tooth by 
Dr. Sandtler, there is absolutely no evidence 
showing that the injury complained of re- 
sulted from the want of skill or diligence 
of either Dr. Sandtler or the defendant in 
the extraction of the roots of the tooth, 
or in their treatment of the plaintiff there- 
after. . . . 
Held No Proof of Negligence. LAW FOR THE DENTIST. 
35 
In conclusion the Court of Appeals 
reversed the judgment rendered against 
the defendant in the lower court, with- 
out a new trial, holding, in effect, that 
on the evidence of record the plaintiff 
had failed to show that she was entitled 
to damages. In other words, there had 
been an utter failure of proof of negli- 
gence or want of skill upon the part of 
the defendant dentist. 
It is believed the two foregoing cases 
fairly illustrate the reasoning of the 
weight of opinion in disposing of mal- 
practice suits against .dentists, based on 
injuries caused by infections which have 
developed after extractions or treatment. 
And their holdings may be summed up 
as follows: 
It is the duty of the dentist to use 
ordinary care and skill in the perform- 
ance of his work, and in the absence of 
proof to the contrary the law presumes 
such skill and care has been employed. 
It follows, then, that in case an infec- 
tion develops thereafter to the injury 
of the patient, the burden is upon him 
(the patient) to show negligence on the 
part of the dentist, and further that 
such negligence was the cause of the in- 36 
LAW FOR THE DENTIST. 
juries resulting from the infection. 
And, as illustrated in the foregoing 
cases, if there is a failure to show these 
essentials there can he no recover}' that 
will likely be sustained hy an appellate 
court. CH APTER V . 
Power of State Dental Board to De- 
termine Character of College Rela- 
tive to Licensing Its Graduates. 
The problem of protecting the public 
from unqualified persons who may seek 
to practice dentistry is one of great im- 
portance. And without doubt one of the 
most vital phases of the problem has to 
do with determining the standing of 
schools and colleges that purport to 
qualify students for the practice. 
This power to determine the standing 
and character of such schools has quite 
generally been delegated to certain 
boards, and it is perhaps not surprising 
that the decisions of these boards have 
been frequently questioned by those 
against whom they have ruled. These 
actions usually consist in an application 
for a writ of mandamus to compel the 
board to issue the petitioner a license, 
the basis of the action being of course 
that in the light of the statute governing 
the issuance of licenses the petitioner is 
entitled to one. 
37 38 
LAW FOR THE DENTIST. 
The determination of the issues thus 
formed may turn on a construction of 
the statute under which the hoard ac- 
quires its powers in relation to the issu- 
ing of licenses. If then the license has 
been refused because of an adverse rul- 
ing of the board on the standing of the 
applicant’s school, the question of the 
extent of the power of the board to de- 
cide the standing of such school is fre- 
quently raised. 
And in this connection it has quite 
generally been held that a State dental 
board, in ascertaining whether or not a 
given school is reputable, acts judicially. 
If then its judgment is predicated on 
reasonable evidence, free from fraud or 
malice, it will not he disturbed by the 
courts. This proposition is illustrated 
in an interesting manner under the 
Illinois law in People ex rel. Sheppard 
vs. Illinois State Dental Examiners, 110 
111. 180, under the following facts: 
Dental Graduate Seeks to Compel Board 
to Issue License. 
The petitioner Sheppard was a gradu- 
ate of a dental college of a neighboring 
State and applied to the Illinois State LAW FOR THE DENTIST. 
39 
Dental Examiners for a license to prac- 
tice dentistry within the State of Illi- 
nois. The board declined to issue the 
license on the ground, it seems, that the 
college from which the applicant was 
graduated was not reputable. 
Upon this refusal the applicant filed 
the instant suit for a writ of mandamus 
to compel the board to issue the license. 
This action was based on the ground 
that the board had no power to deter- 
mine what was, or what was not, a 
reputable school. The contention being 
that tire statute itself defined what was 
a reputable school or college. The sec- 
tion of the Illinois statute relied upon 
by the petitioner provides, among other 
things, as follows: 
That it shall be unlawful for any person 
who is not at the time of the passage of this 
Act engaged in the practice of dentistry in 
this State, to commence such practice, unless 
such person shall have received a diploma 
from the faculty of some reputable dental 
college duly authorized by the laws of this 
State, or of some other of the United States, 
or by the laws of some foreign country, in 
which college or colleges there was, at the 
time of the issue of such diploma, annually 40 
LAW FOR THE DENTIST. 
delivered a full course of lectures and instruc- 
tion in dental surgery. . . . 
But said board shall, at all times, issue a 
license to any regular graduate of any repu- 
table dental college, without examination, 
upon the payment by such graduate to the 
said board of a fee of one dollar. 
In passing upon the question thus 
raised, the court after stating in full the 
petitioner’s contention, among other 
things said: 
The word “reputable” would seem to be used 
here to express the meaning ordinarily at- 
tached to it. If it had been intended that 
a diploma from any dental college, or a di- 
ploma from any dental college “duly author- 
ized by the laws of this State, or some other 
of the United States, ... in which col- 
lege . . . there was, at the time of the 
issue of such diploma, annually delivered a 
full course of lectures and instruction in den- 
tal surgery,” we must presume the language 
would have so said. By using the word 
“reputable,” we must presume the General 
Assembly meant “reputable.” . . . 
As a part of the current history of the 
times, and as an aid in arriving at the legis- 
lative intention, we know there were colleges 
of different kinds authorized by the laws of 
States in which they were located, in which 
there were pretended to be annually delivered 
full courses of lectures and instruction upon LAW FOR THE DENTIST. 
41 
the arts and sciences professed to be taught, 
that were not “reputable,” because they 
graduated for money, frequently without any 
reference to scholarship. A diploma from 
such an institution afforded no evidence of 
scholarship or attainments in its holder. It 
was a fraud, and deserved no respect,—and it 
was as against such diplomas the law was 
intended to protect the public, and therefore 
required that the colleges be “reputable.” 
Right of Board to Determine Whether 
a College is Reputable or Not. 
Whether a college be reputable or not, is 
not a legal question, but a question of fact. 
So, also, are the requirements in regard to 
the annual delivery of full courses of lectures 
and instruction. These questions of fact are, 
by the Act, submitted to the decision of the 
board,—not in so many words, but by the 
plainest and most necessary implication. 
Their action is to be predicated upon the ex- 
istence of the requisite facts, and no other 
tribunal is authorized to investigate them, 
and of necessity, therefore, they must do so. 
The act of ascertaining and determining what 
are the facts, is in its nature judicial. It 
involves investigation, judgment and discre- 
tion. . . . 
In conclusion the court ordered the 
petition dismissed, holding, as an- 
nounced in the opinion, that the board 42 
LAW FOR THE DENTIST. 
had the power to determine whether or 
not a given school or college was reputa- 
ble, and that mandamus Avould not lie to 
compel it to decide the question in any 
particular way. 
The foregoing Illinois decision was 
well reasoned, and is in accord with the 
weight of authority. Generally speak- 
ing, the courts have upheld the right of 
dental boards in passing upon the reputa- 
bility of schools and colleges and, in 
the absence of fiaud or unfairness in the 
conduct of its investigations, the de- 
cisions rendered will not, as a general 
rule, be disturbed by the courts. 
However, in this connection, it is 
worthy of note that where authority to 
pass upon the standing of schools and 
colleges is given to a State dental board, 
it seems the board itself is bound to 
exercise this authority. At any rate it 
has been held that such a board has no 
authority ' to delegate its power to a 
foreign organization. 
This point is illustrated in another 
Illinois case, Illinois State Board of 
Dental Examiners vs. People ex rel. 
Cooper, 123 111. 227. The facts in this 
case are somewhat long and involved, LAW FOR THE DENTIST. 
43 
and space forbids their review in an 
article of this kind. However, the fol- 
lowing will be sufficient to illustrate the 
court’s application of the foregoing rule 
relative to the board’s duty in refraining 
from attempting to delegate its powers 
to another organization outside the State. 
In this case the petitioner, a graduate 
of an Illinois dental college demanded 
that the hoard grant him a license. The 
license was not granted and several 
weeks after the petitioner had filed his 
application, he wrote the board inquir- 
ing why the license was not granted. In 
reply to this the secretary of the hoard 
wrote the petitioner, in substance, as 
follows: 
Dear Sir,—In reply to yours of 25th, I 
would say that the matter of issuing a license 
on your diploma . . . was referred to the 
National Association of Dental Examiners, 
which will meet in August. Until their deci- 
sion I cannot issue any license. 
The case went up on appeal and in 
passing upon this attempted delegation 
of its power by the State dental board, 
as indicated in the foregoing letter, it 
was, in part, said: 44 
LAW FOR THE DENTIST. 
Power Not to he Delegated to Outside 
Association. 
It appears that the association here referred 
to is composed, for the most part, of men 
living outside of this State', and that its meet- 
ing “in August” was to take place in the 
State of New York. 
When a regular graduate of a dental col- 
lege applies to the board of examiners for a 
license, the only question for them to deter- 
mine is whether the college at which the ap- 
plicant graduated is reputable or not. The 
law clothes them, and no other body, with the 
power to decide this question. They cannot 
delegate their discretionary power to an or- 
ganization beyond the limits of this State. 
By the letter of the secretary the board de- 
clined to perform the duty imposed upon it 
by the Illinois statute, and announced its in- 
tention of referring the question of issuing a 
license to a foreign association. . . 
The ease was decided on the plead- 
ings, and as from them the college from 
which the petitioner was a graduate was 
reputable, the court sustained the issu- 
ance of a writ of mandamus directing 
that the license he issued. CHAPTER VI. 
Judicial Construction of Contract 
Selling the “Good-Will” of a Den- 
tal Practice. 
Where a professional practice or loca- 
tion is sold not infrequently the good- 
will thereof is of considerable value. In 
fact, in many cases, the buyer’s main 
object in purchasing an established prac- 
tice is to acquire this intangible asset 
called “good-will.” It usually follows 
that it the buyer is to reap the benefits of 
the good-will purchased, it is necessary 
that the seller refrain from opening a 
competing business or office. 
This then raises the question of what 
passes Tinder a sale of good-will? In 
other words, does the sale of the good- 
will of a business, or practice, carry with 
it an obligation on. the part of the 
seller not to re-engage in the business, 
or practice, to the injury of the buyer? 
This is a nice question and one of great 
importance to all concerned where an 
established business, or practice, is the 
45 46 
LAW FOR THE DENTIST. 
subject of transfer, and in this connec- 
tion it may be said that, generally speak- 
ing, the sale of the good-will of an 
ordinary business does not imply an 
agreement that the seller will not open 
a competing business. 
If the seller is to be restrained it is 
then necessary that the contract of sale 
contain covenants to this effect. There 
is, however, a well-defined distinction in 
the application of this rule where the 
sale is that of a professional location or 
practice. And it seems, by the weight 
of authority, that in the sale of the 
latter a transfer of the good-will works 
a reasonable restraint upon the seller, 
even though there are no specific cove- 
nants of this kind in the contract. This 
point is illustrated in a clear manner in 
Foss vs. Roby, 195 Mass. 292, under the 
following facts: 
Two dentists formed a partnership 
and as such engaged in the practice of 
dentistry in Boston. Thereafter the 
partnership was dissolved, one partner 
buying the interest of the other in the 
office furniture, dental equipment, and 
Good-Will of Dental Practice Sold. LAW FOR THE DENTIST. 
47 
good-will of the business. After this 
the buyer formed a partnership with an- 
other dentist and they continued the 
business in the same location. 
The first contract of sale, it should be 
noted,-did not contain any express cove- 
nant in respect to the seller refraining 
from entering into competition with the 
buyer, his former partner. It did, how- 
ever, expressly convey the seller’s interest 
in the good-will of the partnership prac- 
tice. 
About three years after this sale of 
his interest the seller opened an office in 
Boston for the purpose of practicing his 
profession. It appears from the report 
that by solicitation he obtained many of 
the patients of the old firm, and his 
practice was largely made up of this 
patronage. 
Thereafter his former partner and the 
latter’s then partner began the instant 
action in which they prayed for an in- 
junction restraining him from thus com- 
peting with them. This action seem- 
ingly being based on the theory that as 
the defendant had three years previously 
sold his interest in the good-will of the 
practice he should be restrained from 48 
LAW FOR THE DENTIST. 
entering into competition with the old 
firm. 
The trial of the case in the lower 
court resulted in a decree in favor of the 
defendant. An appeal was prosecuted 
to the Massachusetts Supreme Judicial 
Court, where in passing upon the record 
it was, in part, said: 
What the Court Decided. 
Tlie important questions for decision are 
whether the defendant is precluded by his 
agreement from setting up a competing busi- 
ness, and the measure of relief to which the 
plaintiffs are entitled. By the contract of 
sale, while the defendant explicitly conveyed 
his interest in the good-will, he did not ex- 
pressly covenant to refrain from competition, 
either as to time, or territory. But the sale 
being of an established practice described in 
the instrument as “the dental business” then 
carried on at “Court Street, in said Boston.” 
it was implied, even if not expressed, that 
thereafter the defendant would so practice his 
profession as not to injure and perhaps de- 
stroy the business he had sold. ... In a 
mercantile partnership the sale of the good- 
will conveys an interest in a commercial busi- 
ness, the trade of which may be largely, if not 
wholly, dependent upon locality, and the right 
which the vendee acquires under such a pur- 
chase is the chance of being able to retain the LAW FOR THE DENTIST. 
49 
trade connected with the business where it lias 
been conducted. . . . But in a partnership 
for the practice of dentistry, the personal 
qualities of integrity, professional skill and 
ability attach to and follow the person, not 
the place. 
The object to he obtained was the protec- 
tion of the vendee, and the agreement is to he 
construed as if the defendant had expressly 
covenanted to render the old practice secure 
by not competing himself under conditions 
by which it might either he impaired or 
destroyed. If this were permitted, then, while 
retaining the consideration, the defendant 
might also deprive the plaintiffs of the bene- 
fit of their purchase by regaining the cus- 
tomers. Neither is the agreement, under this 
construction, invalid because unlimited in 
time, for the consideration paid must he 
treated as having been accepted by the de- 
fendant as a full equivalent for a release of 
his right to compete within a restricted terri- 
tory, if by such competition the good-will sold 
was or might be rendered insecure. 
After citing authorities in support of 
the foregoing statement, and a review 
of the methods employed by the defend- 
ant in building up his business to the 
injury of the plaintiffs, the court ad- 
dressed itself to the measure of relief to 
which the plaintiffs were entitled. In 
this connection it was said: 50 
LAW FOR THE DENTIST. 
The business of the old firm was conducted 
in Boston, which is tbe only locality referred 
to in tbe agreement, although tbe practice 
was not wholly derived from tbe place where 
patients were treated, but bad been acquired 
from other cities and towns throughout the 
eastern and interior sections of the State. 
But until it becomes affirmatively manifest 
that the plaintiffs are likely to derive some 
substantial advantage or protection, the vici- 
nage ought not to be extended by implication 
to include the entire area within which former 
patients resided. ' . They are amply 
protected by an injunction enjoining the de- 
fendant from practicing his profession within 
the limits of the city. . . . 
In conclusion the court reversed the 
decree rendered above and awarded the 
plaintiffs an injunction as outlined be- 
low. In addition it was held that upon 
request of the plaintiffs they might be 
given such money damages as they had 
sustained by reason of the defendant 
practicing his profession in competition 
with them. 
The foregoing decision is perhaps the 
clearest and best reasoned the hooks con- 
tain on the precise point under discus- 
sion. The rule announced is in accord 
with the weight of authority which holds 
that in the sale of the good-will of a pro- LAW FOR THE DENTIST. 
51 
fessional practice, or location, there is an 
implied covenant that the seller will not 
compete to the injury of the buyer. 
However, it may be noted that this 
question is still an open one in many 
States; in other words the particular 
point has not been passed upon. And 
while it is reasonable to suppose that a 
given State will follow the rule laid 
down in the Massachusetts case above, 
yet this cannot be stated as a positive 
fact. If then a contract of this kind is 
entered into in a State where the point 
has not been passed upon, it would seem 
but prudent for all concerned to have a 
reasonable restraining covenant inserted 
into the contract. CHAPTER VII. 
On Collecting for Dental Services 
Rendered to Minors. 
In performing dental work for a 
minor the dentist who is prudent will 
give some thought to his rights in the 
matter of enforcing payment for the 
services rendered; this assuming that 
the services are other than for cash, and 
amount to a worthwhile sum. And in 
this connection it may he stated hroadlv 
that the dentist may look to two sources 
for payment, i. e., either the minor or 
his parents. But now comes the diffi- 
culty. 
If it is sought to enforce payment from 
the minor the burden is on the dentist to 
show the services rendered were neces- 
saries. This will usually be a question of 
fact, and whether or not services rendered 
were necessaries will depend upon the 
station in life of the minor, and all the 
circumstances in the case. The subject 
cannot be covered by a general rule, so 
much depends upon the particular facts 
52 LAW FOR THE DENTIST. 
53 
of each individual case, and may best be 
illustrated by the review of a leading 
case. 
In this connection Strong vs. Foote, 
42 Conn. 203, is of interest; for while 
it is by no means a recent case, yet owing 
to the facts involved, and the clear appli- 
cation of the law to them, it becomes a 
case of great value. The circumstances 
leading up to the action were substan- 
tially as follows: 
The defendant was a minor fifteen 
years of age and the owner of an estate 
valued at $60,000. Plaintiff was a dentist 
and performed dental work for the de- 
fendant on one occasion to the value of 
$66.00, later other dental services were 
rendered of the value of $4.00. The 
work was charged to the defendant and 
the latter’s guardian paid the hills with- 
out question. 
About two years later the defendant 
accompanied by friends went to the 
plaintiff’s office, had his teeth examined, 
and they were found to be in had condi- 
tion. The plaintiff at the defendant’s 
request proceeded to clean and fill them. 
This work was of the value of $93.00. 
The guardian, declined to pay the bill, 54 
LAW FOR THE DENTIST. 
and the foregoing suit was filed by the 
plaintiff in an effort to collect. 
Upon the trial of the case in the 
lower court the plaintiff was awarded a 
judgment. The defendant appealed, and 
in announcing the rule as to what con- 
stituted necessaries in relation to the 
needs of minors it was said : 
In suits against minors, instituted by per 
sons who have rendered services or supplied 
articles to them, the term “necessaries” is not 
invariably used in its strictest sense, nor is 
it limited to that which is requisite to sustain 
life, hut includes whatever is proper and suit- 
able in the case of each individual, having 
reference to his circumstances and condition 
in life. 
The court then directed its attention 
to the particular facts of the instant 
case and in determining whether or not 
the services rendered amounted to neces- 
saries it was said: 
The defendant applied to the plaintiff for 
relief from pain and the prevention of its re- 
currence ; he, finding the cause in the defend- 
ant’s decaying and neglected teeth, immedi- 
ately began the work of relief and repair . . . 
It was necessary for the preservation of the 
teeth and the charge therefor is reasonable 
in amount. In view of the circumstances of LAW FOR THE DENTIST. 
55 
this defendant, we have no hesitation in say- 
ing that the services are within the legal 
limitations of the word “necessaries.” . . . 
On the question as to whether or not 
the plaintiff had acted with due care in 
performing the services without inquiry 
of, or notice to, the guardian the court, 
in part, said: 
Again, friends of the defendant 
had twice previously taken him to the plain- 
tiff for dental services, for which bills had 
been made out in his name, and had been paid; 
his guardian furnishing the money without 
warning or objection to plaintiff. These acts 
on the part of the defendant and his guardian 
rendered it unnecessary that the plaintiff 
should have instituted an inquiry as to a 
guardianship over the defendant, before per- 
forming these last services. . . . 
The judgment in favor of the plain- 
tiff dentist rendered in the lower court 
was thereupon affirmed. 
Holding the Parent Liable. 
On the other hand, if the dentist at- 
tempts to hold a parent liable for services 
rendered a minor he must, generally 
speaking, show that the parent authorized 
the work, ratified same after comple- 
tion, or that the services were' necessary 56 
LAW FOR THE DENTIST. 
for the .health or comfort of the minor, 
and that the parent negligently failed to 
have the work done. This is obviously 
casting quite a burden upon the dentist, 
but unless he can bring his case within 
one or more of the foregoing require- 
ments lie cannot hold the parent liable. 
This phase of the question is illus- 
trated in a number of cases, among them 
being Stimpson vs. Hunter, a Massa- 
chusetts case, reported in 125 1ST. E. 155, 
7 A. L. R. 1067. The facts involved be- 
ing in the main as follows: 
A minor son of the defendant, be- 
tween seventeen and eighteen years of 
age, applied to the plaintiff for dental 
services. The plaintiff rendered the 
services and charged them to the son. 
It seems that the plaintiff at this time 
did not know the father’s name, neither 
did he make any inquiry relative to the 
hill being paid by the father. 
Thereafter the plaintiff sent a hill to 
the son; this was not answered and after 
the father’s name had been ascertained a 
hill made to the son was sent to him. 
This was returned by the father, later 
the defendant, with the notation, “You 
won’t get any money on this hill for quite LAW FOR THE DENTIST. 
57 
some time yet,” and signed by the 
father. 
The hill was not paid and the plaintiff 
brought the foregoing action against the 
father. The trial in the lower court re- 
sulted in a judgment in favor of the 
plaintiff. The defendant prosecuted an 
appeal, and in passing upon the record 
the higher court, among other things, 
said: 
It did not appear that the defendant was 
apprized that the work was contemplated or 
knew of it while in progress; it was not per- 
formed on his credit; and there was no special 
exigency rendering the interference of a third 
party reasonable and proper. On the facts 
stated it could not be found properly that the 
defendant authorized the work. . . . 
The sending of the bill to the father was 
not notice that a claim had been or was then 
made against him. Therefore, his answer was 
neither an admission of liability nor evidence 
of ratification. . . . 
In conclusipn the court sustained the 
defendant’s exceptions, holding in effect 
that on the record the plaintiff was not 
entitled to recover, as he had not shown 
circumstances or facts that could be re- 
lied upon to charge the father with 
responsibility for the work done. 58 
LAW FOR THE DENTIST. 
Other Side of Question. 
The other side of the question, i. e., 
when the parent will or may be held 
liable, is illustrated in an interesting 
manner in Ivetchen vs. Marsland, 42 
N. Y. S. 6, under the following state of 
facts: 
The defendant’s infant daughter was 
residing temporarily with a Mrs. 
Beecher. The child’s teeth needed at- 
tention and it appears Mrs. Beecher took 
her to the office of the plaintiff where 
the required dental services were ren- 
dered. 
Thereafter the plaintiff sent a bill to 
the defendant and received no answer. 
Then from time to time, covering a 
period of about three years, the plain- 
tiff continued to communicate with the 
defendant, but it seems was unable to 
get any response. The matter culmi- 
nated in the filing of the foregoing suit. 
The plaintiff was given a judgment in 
the lower court and the defendant prose- 
cuted an appeal to the higher court. 
Here in passing upon the record the 
court, in part, said: LAW FOR THE DENTIST. 
59 
The plaintiff sent a bill to the defendant 
for these services, and received no answer, 
either in approval or dissent; and, during the 
ensuing three years, or more, up to the time 
of the commencement of this action, several 
communications of his to the defendant, with 
regard to his claim, met with no better re- 
sponse. Was not a ratification to be inferred 
from sueh silence? Clearly, the answer must 
be in the affirmative. 
The court next directed its attention 
to a review of the circumstances under 
which the services had been rendered in 
relation to charging the defendant. In 
this connection it was, among other 
things, said: 
Mrs. Beecher was not a mere intermeddler, 
without shadow of right to bind the defendant, 
such as might have justified his ignoring a 
claim based upon her assumed agency in his 
behalf. She had been accorded the care and 
custody of his child, with certain implied 
duties to perform for the infant’s well-being; 
and the procuring of certain necessaries, 
should circumstances require, was one of these 
duties. Granted that the services performed 
by the plaintiff were not such as the defendant 
became liable for, in the first instance, through 
the agent’s act merely, yet this was because 
the agent, being authorized to contract for 
some services, was not authorized as to these. 60 
LAW FOR THE DENTIST. 
She exceeded her actual powers, while clothed 
with some, and but for the principal’s sub- 
sequent assent, expressed or implied, he would 
not have been bound. Under the circum- 
stances of the case, the defendant’s subsequent 
assent appeared from his failure to dissent 
during this extensive period succeeding his 
knowledge of the facts. He was bound to 
disavow Mrs. Beecher’s act within a reason- 
able time after notice. . . 
The court concluded by affirming the 
judgment rendered for the plaintiff in 
the lower court, holding, as appears in 
the opinion, that the defendant’s silence 
amounted to a ratification of his agent’s 
acts that bound him. 
The foregoing decisions illustrate in a 
fair manner the reasoning of the courts 
in determining the rights of a dentist to 
enforce payment for services rendered 
to a minor. Taken together they form a 
neat cross section of this branch of the 
law, and illustrate in a striking manner 
the difficulties incident to the enforce- 
ment of claims of this kind. 
And while under certain circumstances 
payment for dental services to minors 
may be enforced, the subject is one of 
some difficulty. Each case must neces- 
sarily be decided in the light of the facts LAW FOR THE DENTIST. 
61 
involved, which precludes the statement 
of a general rule that would control in 
all cases. For these reasons it would 
seem hut prudent, before work of any 
considerable value of this kind is per- 
formed, that inquiry be made relative to 
either authorization or security of the 
account by some responsible person. C H A PTER VIII. 
On Collecting for Dental Services 
Rendered to Married Women. 
Not infrequently a dentist’s clientele 
may be composed in a considerable meas- 
ure of married women, and so long as 
the services rendered to them are for 
cash their marital status may be of little 
concern to the dentist. If, however, such 
services are charged, the question of the 
legal right of the dentist to enforce pay- 
ment, and the further question of just 
who is liable, as between the woman and 
her husband, may become one of con- 
siderable interest. 
The question is one of some difficulty 
and may perhaps be best approached 
under the following heads: First, when 
will the dentist be able to enforce pay- 
ment from the estate of a married woman 
for services rendered? Second, when 
will the dentist be forced to rely upon 
the resources of the husband if suit is 
filed? Embraced in the second head is 
the further point of when the husband 
62 LAW FOR THE DENTIST. 
63 
will be liable for such services, which 
will be touched upon in its order. 
Now, on the first point, generally 
speaking and without regard for par- 
ticular cases and statutes, it may be said, 
that to hold a married woman liable for 
dental services rendered it must appear 
affirmatively that it was her intention 
to bind her estate. The presumption is 
against this, and her mere promise to 
pay will not be sufficient to make her 
liable unless it appear that it was her 
intention to assume the liability. Tn 
other words, to bind her estate there 
must be an agreement to that effect, 
otherwise the dentist must look to her 
husband for payment, for in the absence 
of such an agreement she will be pre- 
sumed to have contracted for him. This 
phase of the subject may be illustrated 
by a brief review of Clark vs. Tenneson, 
146 Wis. 65. The facts out of Avhich 
the case arose were in the main as fol- 
lows : 
Dental Services Rendered to Married 
Woman and Charged to Her Account. 
The plaintiff was a duly licensed den- 
tist engaged in the practice of his pro- 64 
LAW FOR THE DENTIST. 
fession, and was employed by the de- 
fendant, a married woman, to make a 
set of artificial teeth for her rise. At 
the time this contract was entered into 
the plaintiff knew the defendant was a 
married woman, and it seems she had 
always previously paid him personally 
for dental work he had done for herself 
and children. 
Upon the completion of the work the 
plaintiff charged same to the account of 
the defendant. The defendant declined 
to pay, and the matter thereafter cul- 
minated in the instant suit, in which the 
plaintiff sought to collect, against her 
personally. 
The defendant contested the action on 
the grounds that the claim represented 
necessaries that her husband was bound 
to supply and therefore that he was liable 
and not she. In reply to this the plain- 
tiff set up that it was understood from 
the beginning that the transaction was 
an individual and personal sale to the 
defendant, and that she assumed to pay 
for same. The cause reached the Wis- 
consin Supreme Court on appeal and in 
passing upon the question as to whether 
or not the teeth were “necessaries” it 
was, in part, said: LAW FOR THE DENTIST. 
65 
The only question in dispute is whether the 
defendant’s husband is liable for these sets 
of artificial teeth, as articles of such neces- 
sity that he, as husband, is obligated to pay 
for them. ... It is a matter of common 
knowledge that artificial teeth are most useful 
and necessary articles for the promotion of 
personal comfort and health, and that their 
use in this country has attained practical uni- 
versality. We consider that such teeth come 
within the class of articles constituting 
“necessaries,” which a husband may be bound 
to furnish his wife. . . . 
After the foregoing statement of its 
conclusion on this phase of the case, the 
court addressed its attention to the con- 
tention of the plaintiff, that the trans- 
action between the plaintiff and the de- 
fendant was one that would personally 
hind the latter. In reviving the evi- 
dence on this point it was said: 
Wife Represented Husband in Contract- 
ing for Services. 
True, tlie plaintiff had no personal dealings 
with the defendant’s husband. But this is 
not necessary, if the articles were purchased 
under circumstances indicating that they 
were supplied her in the usual manner, as 
necessaries for which a husband is liable as 
such. The question is, did the wife negotiate 
the purchase under circumstances indicating 
that she was authorized to do so? 66 
LAW FOR THE DENTIST. 
It appears with sufficient certainty that the 
defendant attended to the dental affairs of 
herself and of other members of the family, 
including the payment of such hills. There is 
nothing in the record to show that she paid 
such bills out of her separate funds or estate. 
Presumably, then, she made the payments for 
the husband and father. This is sufficient to 
apprize the plaintiff of this fact, and he must 
be deemed to have dealt with her upon this 
basis, which showed her relation to the trans- 
action. . . . Under the circumstances, we 
consider that it was established that the de- 
fendant was acting under the authority of her 
husband, and the court properly held that it 
was not shown that the defendant was indi- 
vidually liable upon the claim presented 
against her. 
In conclusion the Supreme Court af- 
firmed the judgment of the lower court 
in favor of the defendant, holding, as 
outlined in the opinion, that the plaintiff 
had failed to show that the contract 
entered into was one that would render 
the defendant personally liable. 
The foregoing case is one of the clear- 
est the writer has discovered upon this 
phase of the subject under discussion. 
It illustrates in a striking manner the 
importance to the dentist of a clear 
understanding of liability where services LAW FOR THE DENTIST. 
67 
are rendered to a married woman, if the 
dentist proposes to rely upon the woman 
for payment. For, by the weight of 
authority, he will not be permitted to 
recover from a married woman unless he 
can establish such a contract. 
Rights of Dentist to Collect from 
Husband. 
This then brings us to the second phase 
of the subject, i. e., when and under what 
circumstances will the dentist be entitled 
to hold a husband liable for dental serv- 
ices rendered to the wife? Here again 
we are on somewhat difficult ground, and 
as the books contain but few cases in- 
volving the precise point, it is necessary 
to refer to general legal rules governing 
the liability of a husband for necessaries 
furnished his wife. 
In this connection it may be stated 
broadly, that a wife, merely by virtue 
of the marital relation, as a matter of 
law, does not acquire the right to pledge 
her husband’s credit. Before she may do 
this, agency, expressed or implied, must 
be shown. 
As a general rule for example, a hus- 
band will not be liable, even for neces- 68 
LAW FOR THE DENTIST. 
saries furnished his wife, where she has 
left him without cause; or, where she 
has agreed to accept a certain sum from 
him for her maintenance and he has paid 
as agreed. 
On the other hand, if the. husband 
expressly authorized the wife to contract 
for dental services, or if he pays such 
bills from time to time, or in other ways 
acts or talks in such a manner as to 
show an acquiescence in the incurring of 
such obligations, he may not be per- 
mitted to deny the right of the dentist 
to recover. And further, if he fails to 
provide for his wife he will usually be 
liable for necessaries she has purchased, 
providing they are living together, or 
even though they are living apart if the 
separation was due to his fault and she 
was free from blame. 
It is plain from the foregoing that if 
the dentist is to render services to a mar- 
ried woman, on her husband’s credit, he 
owes it to himself to have some knowl- 
edge of their domestic arrangements. If 
he goes ahead and does the work merely 
on the wife’s word that the claim will 
be paid, he may incur some risks if it 
becomes necessary to enforce payment LAW FOR THE DENTIST. 
69 
from the husband. For the latter may 
have a good defense to such an action 
that the dentist failed to discover before 
it was too late. This is of course as- 
suming that the husband has made no 
representations relative to the work, nor 
has acted in such a manner previously 
as to lead the dentist- to suppose that he 
approved the agreement entered into by 
the wife. 
On the other hand, if the services 
rendered are necessaries, in the light of 
the husband’s station in life, and he has 
by word or action led the dentist to be- 
lieve the wife had authority to contract 
for the services, the dentist will as a 
general rule be entitled to recover. 
Just what actions, or representations, 
may be sufficient to charge the husband 
in situations of this kind may be illus- 
trated by the holding in Gilman vs. 
Andrus, 28 Yt. 241. The material facts 
out of which the action arose were as 
follows: 
Dental Services Rendered to Wife and 
Charged to Husband. 
The plaintiff dentist, it seems, had for 
some time previous to this action ren- 70 
LAW FOR THE DENTIST. 
dered dental services to the defendant’s 
wife. These services had been paid for 
without objection by the defendant, and 
thereafter he had a conversation with the 
plaintiff relative to the making of a plate 
of mineral teeth for his wife. At this 
time the defendant said he would have 
the work done as soon as he was able. 
Thereafter, it seems, the defendant’s 
wife contracted with the plaintiff for the 
plate; it was made, delivered, and re- 
tained by the wife, but the defendant 
declined to pay for it. The instant ac- 
tion followed in which the plaintiff 
sought to recover the amount claimed to 
be due. In reviewing the evidence and 
in passing upon the liability of the hus- 
band on the facts disclosed the court, in 
part, said: 
The plaintiff, from previous dealings which 
he had had with the defendant, had reason 
to believe that the wife was authorized to 
contract for the plate. . . . The plaintiff 
had been previously, and shortly before the 
plate was contracted for, employed by the de- 
fendant’s wife as a dentist, for which services 
the defendant does not dispute his liability. 
The defendant also had a previous conversa- 
tion with the plaintiff in relation to furnish- 
ing the plate, in which the defendant told LAW FOR THE DENTIST. 
71 
him he would have the work done as soon as 
he was able. Those circumstances, in connec- 
tion with the fact that he permitted his wife 
to retain the plate . . . are sufficient to 
show her authority to make the purchase, and 
the defendant’s liability. . . . 
In conclusion the judgment of the 
lower court in favor of the plaintiff was 
affirmed. 
It is believed the two foregoing cases 
when taken together constitute a fair 
presentation of the case law of the sub- 
ject under consideration. As noted in 
the beginning, the subject is one of some 
difficulty, and each case of this kind 
must necessarily be decided in the light 
of the facts and circumstances involved, 
and perhaps in the light of the statutes 
of the State in which it arises. However, 
it would seem, generally speaking and 
without regard for particular facts and 
statutory enactments, the holdings re- 
viewed may be briefly summarized as 
follows: 
The right of a dentist to enforce pay- 
ment against a married woman person- 
ally for services rendered, will depend 
Conclusion. 72 
LAW FOR THE DENTIST. 
upon whether or not the services were 
contracted for by her, with the express 
intent of binding her estate. If so, the 
dentist may enforce payment from her. 
If, on the other hand, the married woman 
merely promised to pay, or merely or- 
dered the work or services, the presump- 
tion is that she was acting for her hus- 
band, and whatever right of recovery 
the dentist may have will needs be di- 
rected against the latter. 
The right then of the dentist to re- 
cover against the husband will depend 
upon the circumstances of the case, as 
has been previously outlined. But in 
any event before the husband can be 
forced to pay, either ratification after 
the act, or agency, expressed or implied 
at the time the services were contracted 
for, must generally speaking be shown. CHAPTER IX. 
Dental Instruments as “Tools” 
Within Meaning of Statutes Ex- 
empting Such from Execution. 
The exemption statutes of the differ- 
ent States vary so widely in their terms 
that each case arising under them must 
necessarily be decided in the light of the 
statute where the action arises. For this 
reason it is obvious that the statement of 
a general rule that would govern exemp- 
tions in all cases is hardly possible. 
However, in this connection, it may 
be stated that generally speaking the 
purpose of exemption statutes is to pre- 
vent a creditor from taking all an un- 
fortunate debtor may have. In other 
words, to save to the debtor his actual 
means of livelihood so that he may con- 
tinue to be self-supporting even though 
financial reverses overtake him. 
With this in mind statutes of this kind 
frequently stipulate that the debtor shall 
be permitted an exemption on the 
“tools,” “instruments,” “implements,” 
etc., that he uses in his customary em- 
ployment. In some of the statutes 
73 74 
LAW FOR THE DENTIST. 
articles of this kind are exempt up to a 
certain value; in others no value is set, 
but regardless of this, the question in 
perhaps the majority of exemption cases 
is whether or not the articles sought to 
be retained by the debtor, come within 
the meaning of the statute. 
It follows that in deciding cases of this 
kind, the courts have been called upon to 
apply the terms of the statutes to par- 
ticular facts arising in, or out of, many 
different trades and professions. In this 
connection dental equipment has been 
considered in a number of cases, and it 
has been generally held, that the tools 
used by a dentist, in the practice of his 
profession, are exempt from execution 
under provisions exempting “mechanical 
tools,” used by the debtor in his princi- 
pal business. This reasoning of the 
courts in construing statutes of this kind 
may be illustrated by a brief review of 
Maxon vs. Perrott, 17 Mich. 332, which 
arose under the following facts: 
Dental Instruments and Equipment 
Levied Upon. 
An action in replevin was brought in 
which it was sought to obtain, among LAW FOR THE DENTIST. 
75 
other things, a case of dental instru- 
ments. One side claimed these instru- 
ments were exempt from execution un- 
der the provisions of an exemption 
statute which provided against the levy 
and sale under execution of “the tools, 
implements, materials, stock, apparatus, 
... or other things to enable any per- 
son to carry on the profession, trade, 
occupation or business, in which he is 
wholly or principally engaged, not ex- 
ceeding in value $250.” 
The other side took the position that 
the dental instruments were not exempt 
hy virtue of the following amendment to 
the foregoing statute, because the judg- 
ment under which the instruments had 
been taken was rendered for the pur- 
chase price of the instruments. This 
amendment provided as follows: “The 
property exempted in the subdivision of 
which this Act is amendatory, excepting 
mechanical tools and implements of 
husbandry, shall not be exempt from 
any execution issued upon a judgment 
rendered for the purchase money for the 
same property.” 
This raised the question of whether or 
not the case of dental instruments could 76 
LAW FOR THE' DENTIST. 
be considered “mechanical tools” within 
the meaning of the foregoing amend- 
ment. In passing upon this the court 
after first stating the facts and quoting 
from the statutes, in part, said: 
Dental Instruments Held Exempt. 
The question which this case presents, is 
whether the case of dental instruments is 
covered by the term “mechanical tools” or 
not; it being clear that, if not, these instru- 
ments were subject to the levy of the execu- 
tion in question. . . . 
I do not deem it necessary, however, to 
enter upon a critical examination of the words 
employed in the statute, as my brethren are 
all of the opinion that under any construction 
which could be reasoiiably given to the word 
“mechanical,” as here used, the tools of a 
dentist must be included. A dentist, in one 
sense, is a professional man, but in another 
sense his calling is mainly mechanical, and 
the tools which he employs are used in 
mechanical operations. Indeed, dentistry was 
formerly purely mechanical, and instruction 
in it scarcely went beyond manual dexterity 
in the use of tools, and a knowledge of the 
human system generally, and of the diseases 
which might affect the teeth and render an 
operation important, was by no means con- 
sidered necessary. Of late, however, as the 
physiology of the human system has become LAW FOR THE DENTIST. 
77 
better understood, and the relation of its vari- 
ous parts and their mutual dependence are 
more clearly recognized, dentistry has made 
great progress as a science, and its practi- 
tioners claim, with much justice, to be classed 
among the learned professions. 
It is, nevertheless, true that the operations 
of the dentist are still for the most part 
mechanical, and, so far as tools are employed, 
they are purely so; and we could not exclude 
these tools from the exemption which the 
statute makes, without confirming the con- 
struction of the statute within limits not 
justified by the words employed. . . . 
In conclusion the court held, as out- 
lined in the opinion, that the dental 
instruments were within the statute and 
therefore exempt from execution. 
Holdings in Other Cases. 
The foregoing decision is perhaps the 
best reasoned the books contain on the 
point under discussion, and it is in accord 
with such other authority as the writer 
has been able to discover. For in Duper- 
ron vs. Communy, 6 La. Ann. 789 it was 
also held that the surgical instruments 
of a dentist wrere exempt from execu- 
tion under the Louisiana statute. 
However, in Burt vs. Stocks Coal Co., 
119 Ga. 629, 46 S. E. 828, a dentist’s 78 
LAW FOR THE DENTIST. 
chair was held not exempt, under the 
Georgia statute, as a “common tool of 
trade.” In construing this phrase of 
the statute, in relation to its application 
to a dentist’s chair the court, among 
other things, said. “The phrase ‘com- 
mon tools of trade,’ therein, has uni- 
formly been construed to refer not to 
tools in common use by the debtor, re- 
gardless of their value, but to those 
simple and inexpensive appliances used 
in his trade.” 
It is obvious from the foregoing that 
whether or not the instruments, equip- 
ment, and appliances of a dentist will be 
exempt from execution depends upon 
the wording of the statute in the State 
where the action arises. However, it 
would seem that, under the provisions of 
exemption statutes that exempt “tools 
of the debtor’s trade or profession,” the 
instruments of a dentist would be exempt 
providing they did not fall outside of the 
statute because of value, where the latter 
is stipulated. CHAPTER X. 
Judicial Construction of Contracts 
in Restraint of Trade Made in 
Connection with the Sale of a Den- 
tal Office. 
In perhaps the majority of cases where 
a dental practice is sold, the question of 
how far the contract of sale should go, 
in restraining the seller from competing 
with the buyer, is one of great impor- 
tance. The average buyer of such a prac- 
tice as a matter of course desires to be 
protected in his purchase. In other words 
he wants some assurance that the seller 
will not, perhaps six months thereafter, 
again open an office and attempt to at- 
tract the patrons of his old office. 
On the other hand, the seller, owing 
to the uncertainties of the future, should 
not in justice to himself handicap his 
future movements in an unreasonable 
manner. It follows, the question of what 
will amount to a “reasonable” restriction, 
and one that will he enforced by the 
courts, becomes in such situations of 
79 80 
LAW FOR THE DENTIST. 
vital interest to both the buyer and the 
seller; and it may be stated at the outset 
that unless such a contract is drawn with 
some care it may prove a grievous dis- 
appointment to one or the other of the 
parties. 
In the first place, generally speaking, 
the courts will not enforce a contract in 
general restraint of trade. That is, a 
contract that restrains one without limit 
as to time or territory. This for the 
reason that such contracts are usually 
held to be against public policy. On the 
other hand, the courts will usually en- 
force a contract in partial restraint of 
trade; at least to the extent that the 
buyer actually requires to protect him- 
self in the purchase he has made. The 
vital question then in drawing such con- 
tracts is, what terms will he reasonable 
in the light of the practice sold? 
In arriving at this, the location, 
whether it he in a village, or in the heart 
of a great city, should of course be taken 
into consideration along with all other 
facts and circumstances. And certainly 
care should be used in drawing the terms, 
in particular those relating to the terri- 
torial limitations, for if they are am- LAW FOR THE DENTIST. 
81 
biguous, or uncertain, they may easily 
lead to after dispute. And as the 
reasonableness of such contracts is usu- 
ally one of fact, it would seem the safest 
criterions of their sufficiency would be 
found in the decisions where the ques- 
tion has been judicially passed upon. 
From this viewpoint a brief review of 
some of the decided cases on the point 
may prove interesting and perhaps be of 
more value, in illustrating bow the courts 
construe contracts of this kind, than any 
amount of general theorizing. With this 
in mind Cook vs. Johnson, 47 Conn. 175, 
is worthy of consideration; for while it 
is not a recent case on the point, yet, 
owing to the clear statement of the rules 
of construction laid down by the court, it 
becomes a decision of great value. The 
facts involved were briefly stated, as 
follows: 
Dental Practice Sold—Seller Restrained. 
The defendant Johnson sold his dental 
practice to Cook and executed the fol- 
lowing agreement in witness of the sale: 
I this day sell and convey to Frank F. 
Cook all the furniture and fixtures in the 
rooms over Dr. Beckwith’s drag store; also 82 
LAW FOR THE DENTIST. 
my good-will; and do agree and bind myself 
not to practice dentistry within a radius of 
ten miles of said Litchfield, and for the con- 
sideration above named have this day re- 
ceived one hundred dollars from Frank F. 
Cook’s hand. 
Thereafter, it seems, Johnson pro- 
ceeded to practice dentistry in Litchfield 
in violation of his agreement, and Cook 
brought the instant, suit in an effort to 
restrain him. The defendant Johnson, 
it appears, defended the action on the 
ground that the contract was too uncer- 
tain and indefinite as to both territory 
and time to be enforced. 
The contention being that the descrip- 
tion as to the territory covered, namely, 
“within a radius of ten miles of said 
Litchfield,” was uncertain because it did 
not specify any given point from which 
to compute the radius. The other objec- 
tion was based on the fact that there was 
no time of duration stated, which the 
defendant insisted made the contract un- 
enforceable. 
The court in passing upon the ques- 
tions raised quoted the contract, then in 
announcing the rule relative to the 
requisites of such contracts, in part said : LAW FOR THE DENTIST. 
83 
As this belongs to the class of contracts 
in restraint of trade, three requisites are es- 
sential to its validity. 1st. It must be par- 
tial, or restricted in its operation in respect 
either to time or place. 2d. It must he on 
some good consideration. 3d. It must be 
reasonable, that is, it should afford only a 
fair protection to the interests of the party 
in whose favor it is made, and must not be 
so large in its operation as to interfere with 
the interests of the public. 
After this statement of the general 
rule of requisites, the court noted the 
contention of the defendant, as hereto- 
fore outlined, and in addressing itself 
to the first, i. e., that the contract failed 
to state a definite point from which to 
compute the ten-mile radius, it was, 
among other things, said: 
Territorial Description Construed. 
But in making such a contract the parties 
would naturally take their stand at the place 
where the business to be sold had been carried 
on, and would fix the utmost limits of the 
territory at equal distance from that point in 
every direction, and as far at least as they 
supposed the good-will might attract custom- 
ers. Now the contract is dated at “Litch- 
field,” where the postoffice of that name was 
located, and the ten miles are to be computed 84 
LAW FOR THE DENTIST. 
from “said Litchfield,” referring to the place 
where it was dated. It is also to he remarked 
that the precise point in the village of Litch- 
field where the business referred to had been 
carried on by the respondent is mentioned, 
namely, “in the rooms over Dr. Beckwith’s 
drug store.” 
Now if we put ourselves in the position of 
the parties it would seem that the language 
which they used is capable of very easy and 
definite application, and thus construed the 
contract means ten miles in every direction 
from the center of the village of Litchfield. 
The court next addressed its attention 
lo the second contention of the defend- 
ant, i. e., that the time the contract 
was to run was too indefinite. In dis- 
posing of this point it was said: 
The contract is silent in respect to the time 
of its duration. But there is a well-settled 
distinction between a general restriction as to 
place and a general restriction as to time. 
The mere fact that the duration of the restric- 
tion as to time is indefinite or perpetual will 
not of itself avoid the contract if it is limited 
as to place, and is reasonable and proper in all 
other respects. 
The court in conclusion affirmed a 
decree rendered in the lower court in 
favor of the plaintiff, holding that the 
contract was valid and enforceable. LAW FOR THE DENTIST. 
85 
At this point it may be noted that 
there are cases involving the sale of 
physicians’ practices in which it has 
been held that such a contract unlimited 
as to time is invalid. However, it seems 
the foregoing Connecticut case is in ac- 
cord with the weight of authority, which 
holds that a contract unlimited as to 
time is valid, providing there is a reason- 
able territorial limitation. 
Another Case in Point. 
Another interesting case involving a 
contract in restraint of trade, ancillary 
to the sale of a dental practice, which is 
illustrative of what has been held to be 
a reasonable restraint both as to time 
and territory, is that of Niles vs. Fenn, 
33 N. Y. S. 857. The action was predi- 
cated on the following facts: 
The defendant had for a period of ten 
or twelve years practiced dentistry at 
172 East One Hundred and Sixteenth 
street in New York City. He sold his 
location and good-will to the plaintiff 
for the sum of $1,500, and agreed not to 
re-engage in the practice of dentistry 
for a period of four years, “within the 86 
LAW FOR THE DENTIST. 
territory bounded by the Harlem river 
on the north, Seventieth street on the 
south, East river on the east, and the 
North river on the west.” 
Before the expiration of the time limit 
on this contract, it appears, the defend- 
ant re-entered the practice of dentistry 
within the territory defined. The plain- 
tiff thereupon brought this action in 
which he prayed for an injunction that 
would prevent the defendant from con- 
tinuing in such practice. In sustaining 
tliis contract the court, among other 
things, said: 
The object of this agreement was to protect 
the good-will, which, formed the main induce- 
ment to the sale, and for which the plaintiff 
parted with almost all the money he paid. Al- 
though the business sold was a professional 
one; the law recognizes the fact that it has a 
gcod-will which may be sold as an incident 
of the business. . . . It is a species of 
property depending upon circumstances for 
its value. It is in some instances more valu- 
able than the second-hand chattels that go 
with it, and often the inducing cause of a 
purchase. It may be precarious; need atten- 
tion; and at times protection. Part of the 
custom may by the change drift away, but 
the vendor must not create the current that 
carries it. . . . LAW FOR THE DENTIST. 
87 
The court then, after a review of the 
facts and evidence which convinced it 
that there had been a clear violation of 
the agreement by the defendant, con- 
cluded by saying: 
The case presented calls for equitable inter- 
ference. The covenant must be preserved and 
enforced, and to that end the plaintiff is 
granted the injunctive relief claimed. 
The two foregoing cases are among 
the clearest the writer has found in 
which the question under consideration 
has been passed upon, in respect to the 
sale of a dental practice. These holdings 
when taken with kindred cases involving 
the sale of other professional practices, 
such as medical, legal, etc., may, it 
seems, be fairly summarized as follows: 
Summary. 
A contract in restraint of trade, 
ancillary to the sale of a dental practice, 
based on an adequate consideration, 
will be enforced providing its terms are 
only in partial restraint and afford no 
more than a fair protection to the rights 
of the purchaser, without prejudice to 
the public welfare. And by the weight 88 
LAW FOR THE DENTIST. 
of authority such a contract will not be 
invalid because no definite time is stated, 
providing the territorial restriction is 
reasonable. 
However, as noted heretofore, the 
courts are not precisely in accord on the 
latter point, some holding a limitation 
as to time to be necessary. In view of 
the latter some care should be exercised 
on this point. If the law of the State in 
which it is drawn demands a time limita- 
tion it should of course be inserted. And 
even in States where it is an open ques- 
tion it would seem but prudent to restrict 
the time, and thus forestall any possible 
future difficulty on that score, especially 
so if this can be done without detracting 
from the rights of the purchaser. 
It is of course obvious that the con- 
tract should be drawn in plain unam- 
biguous terms; particularly as to the 
territory covered. The Connecticut 
case that has been examined illustrates 
the importance of this, and how if any- 
thing is left to conjecture, it may, in 
the future, become a cause of dispute. 
And above all a reading of the cases of 
this class is impressive of the importance 
to the purchaser of being reasonable in LAW FOR THE DENTIST. 
89 
his demands—the validity of any such a 
contract depends upon this—and not 
try to cover too much ground, for if he 
does he may find that his contract is 
indeed but a “scrap of paper,” furnish- 
ing him no protection whatever. CHAPTER XI. 
Judicial Construction of Statutes 
Providing for the Revocation of 
Dental Licenses for Cause. 
Without doubt the enforcement of 
statutes providing for the revocation of 
dental licenses for cause has redounded 
to the benefit of both the general public 
and the dental profession, and while the 
right of a legislature to enact statutes of 
this kind has been quite generally up- 
held, the courts are not precisely in 
accord on the question of how the causes 
for revocation should be defined. 
For example: In some States, and 
these States are in the majority, acts of 
this kind have been upheld where the 
grounds for revocation have been stated 
in general terms: as, “for fraudulent or 
misleading statements as to skill,” or, 
“for dishonorable conduct,” etc.; the 
courts interpreting these general terms 
according to their accepted meaning, and 
leaving the question as to whether they 
have been violated or not entirely with 
90 LAW FOR THE DENTIST. 
91 
the boards that have been given power 
to try such cases, and in jurisdictions 
where this is the rule the judgments of 
such boards will not, as a general rule, 
be disturbed in the absence of fraud or 
bad faith. 
On the other hand, in some States the 
courts have declined to uphold such 
statutes where the causes for revocation 
Avere described in general terms, as il- 
lustrated in the foregoing paragraph. 
These courts have taken the position 
that, before such a serious penalty should 
he en forced, the statute should clearly 
inform those amenable just what acts 
would amount to cause for the revoca- 
tion of their licenses. 
The reasoning of the courts in these 
respective lines of decisions may per- 
haps be best illustrated by the brief re- 
view of a case from each class, and as 
an example of the holdings in which it 
is held sufficient to state causes for revo- 
cation in general terms, Richardson vs. 
Simpson, et al., State Board of Dental 
Examiners, 88 Kansas G84, will serve. 
The facts and circumstances leading up 
to the action were in the main as fol- 
lows : 92 
LAW FOR THE DENTIST. 
The Kansas statute upon which the 
action was predicated provided among 
other things that the State Board of 
Dental Examiners might revoke the li- 
cense of dentists, “who have, by false or 
fraudulent representations, obtained, or 
sought to obtain, money or any other 
thing of value, or have practiced under 
names other than their own, or for any 
other dishonorable conduct.” 
Plaintiff’s License is Revoked, 
Richardson, the plaintiff, was a dentist 
engaged in the practice of his profes- 
sion. A complaint against him was 
made before the State board of dental 
examiners predicated on an alleged vio- 
lation of the provisions of the law' quoted 
from in the preceding paragraph. This 
complaint alleged that he had been 
guilty of obtaining money by false pre- 
tenses and of dishonorable conduct. 
Under this it was specified that he had 
performed services for a customer under 
promise to make needed repairs without 
charge, and that after receiving pay- 
ment in full he had refused to make re- 
pairs that became necessary by reason 
of defective work. LAW FOR THE DENTIST. 
93 
The board .investigated the matter and 
after hearing the evidence issued an or- 
der revoking Richardson’s license. The 
latter thereupon brought the instant ac- 
tion in the District Court to enjoin the 
board from enforcing its order, and be- 
ing successful obtained a permanent in- 
junction. The board then prosecuted an 
appeal to the Kansas Supreme Court. 
The two principal contentions of the 
plaintiff seem to have been: First, that 
the conduct complained of did not 
amount to obtaining money under false 
pretenses. Second, that the provision 
of the statute providing for the revoca- 
tion of a dentist’s license for “dishonor- 
able conduct” was void for uncertainty. 
1 n passing upon tbe first of these con- 
tentions, the court, after stating that 
the decision of the board was final on 
questions of fact relative to whether a 
license should be revoked or not, so long 
as the board acted in good faith, in part, 
said : 
Whatever should be the rule in a criminal 
prosecution, the making of a promise, without 
any intention of performing it, should be re- 
garded as a false pretense, within the mean- 
ing of the statute here involved. Of course, 94 
LAW FOR THE DENTIST. 
the mere failure of Richardson to keep a busi- 
ness agreement would not be a ground for re- 
voking his license; but the evidence warranted 
the belief, upon which the board obviously 
proceeded, that he knew the work was de- 
fective when he collected pay for it, and that 
he had no intention of making the repairs. 
The court next directed its attention 
to the plaintiff’s second contention, i.e.. 
that the term “dishonorable conduct” was 
too vague to permit of its enforcement as 
a ground for the revocation of his li- 
cense. In passing upon this phase of 
the case it was, among other things, 
said: 
The plaintiff contends that the portion of 
the statute warranting the revocation of a 
dentist’s license for “dishonorable conduct” is 
unconstitutional and void, because the phrase 
is too indefinite to be made the basis for such 
action. Several courts have held in accord- 
ance with that contention, the argument be- 
ing that a course regarded by one person as 
dishonorable, may not seem so to another; 
and there is no fixed standard by which the 
disagreement can be settled. . . . 
The court then, after reviewing and 
citing a number of authorities on the 
question, stated its reasons for declining 
to approve of the plaintiff’s contention 
in the following language: LAW FOR THE DENTIST. 
95 
General Terms in Statute Held 
Sufficient. 
We think it is going entirely too far to 
say that such a provision is a nullity. Be- 
fore a license to practice dentistry is issued, 
the applicant is required to furnish proof that 
he is “of good moral character.” . . . The 
phrase is general; hut no great practical dif- 
ficulty attends its application. The courts 
which make a distinction between general lan- 
guage used in defining the conditions upon 
which one may be originally permitted to 
practice, and similar language used in stating 
the grounds upon which the permission may be 
withdrawn, proceed upon the theory, not ac- 
cepted by this court, that the revocation of 
the license is essentially a punishment. The 
evil results, the fear of which has occasioned 
the decisions against the validity of provisions 
authorizing the revocation of a practitioner’s 
license upon general grounds, can be avoided 
by reasonable interpretation. 
The court next directed its attention 
to how the term “dishonorable conduct” 
should be interpreted, and in making the 
application to the instant case it was 
said: 
Doubtless no conduct should be deemed “dis- 
honorable” in such a sense as to warrant a for- 
feiture of a dentist’s right to practice, unless 
it occurs in connection with the exercise of his 
profession and involves moral turpitude. The 96 
LAW FOR THE DENTIST. 
expression “other dishonorable conduct,” may 
be interpreted to mean conduct of the same 
general character as that already specified. 
. . . Whether or not the conduct of Rich- 
ardson, as narrated by Mrs. Brack [the com- 
plaining witness in the instant case], con- 
stitutes what might be technically described 
as obtaining money by false pretenses, it was 
dishonorable conduct of a similar kind. 
In conclusion the Supreme Court re- 
versed the judgment rendered in favor of 
the plaintiff, Itichardson the dentist, by 
the trial court, and ordered that judg- 
ment be entered for the defendant board. 
The foregoing decision was carefully 
considered, and it is believed that it 
fairly represents the majority of juris- 
dictions in holding that statutes of this 
kind are not invalid because they state 
the causes for revocation in general 
terms. On the other hand, as noted in 
the beginning, there is a line of de- 
cision that takes the other view of the 
matter and declines to enforce the terms 
of revocation statutes unless the grounds 
are stated with particularity. As an ex- 
ample of the reasoning of this line of 
The Other Side of the Question. LAW FOR THE DENTIST. 
97 
cases, Green, el al., Arkansas State 
Board of Dental Examiners vs. Blanch- 
ard, an Arkansas case reported in 211 
S. W. 375, 5 A. L. R. 84 is worthy of 
examination. The facts in the case in 
so far as material to this article were 
as follows: 
The Arkansas statute regulating the 
practice of dentistry gave power to the 
State hoard to revoke dental licenses for 
■» . 
cause. Thereswere a number of grounds 
upon which revocation might be predi- 
cated, among them the following: 
“The publication or the circulation of 
any fraudulent or misleading statements 
as to the skill or method of any person 
or operator.” Or, . . in any 
way advertising to practice dentistry or 
dental surgery without causing pain or 
advertising in any other manner with 
the view of deceiving or defrauding the 
public or in any way that would tend 
to deceive the public. . . .” 
The State board of dental examiners 
revoked the license of Dr. F. A. Blanch- 
ard for alleged violations of the statute 
quoted from above. The evidence upon 
which the board based its judgment, it 98 
LAW FOR THE DENTIST. 
seems, consisted of advertisements which 
Dr. Blanchard had used in the conduct 
of his practice. Among the exhibits of 
this kind appeared the following, which 
illustrates the nature of the advertising 
matter used: 
Blanchard's Dentists are Specialists. Each 
Thoroughly Efficient in His Own Line. Dental 
Work is divided into parts at Blanchard's. If 
a tooth is to be pulled, you are attended by an 
expert extractor who understands this thor- 
oughly. If a crown is to be made, an expert 
laboratory man does this, and so on. You are 
thus assured of work as good as the best. 
From the order of the board revoking 
his license Dr. Blanchard appealed to 
the circuit court where a judgment was 
rendered setting aside the order of the 
board. The board thereupon prosecuted 
an appeal to the Arkansas Supremo 
Court. On this appeal the board relied 
on the power given it under the por- 
tions quoted from above, contending 
that the words “deceiving or defrauding” 
the public included the acts of Dr. 
Blanchard proved by the board. The 
contention, it seems, being that it would 
have been impossible for the Legislature 
to set out in detail all acts which these LAW FOR THE DENTIST. 
99 
words embrace, and “that their meaning 
should he considered by the common 
judgment of mankind.” 
In answer to this it was contended 
that the provisions of the statute relied 
upon by the board were “so vague and in- 
definite as to make the statute inoper- 
ative and invalid for that reason.” Cases 
were cited by both sides in support of 
their respective contentions, and in pass- 
ing upon the points involved the court 
referred to the statute in question, and 
in reaching its conclusion, reasoned, in 
part, as follows: 
What the Court Decided. 
It does not advise the dentist in advance of 
what act or acts may be in violation of its 
provisions. Subdivision 2 and the words, “de- 
ceiving or defrauding the public,” have no 
common law definition. They are not defined 
in the statute and have no generally well- 
defined meaning in the decision of courts. 
Under the statute, a dentist might do an act 
neither violating moral law nor involving 
moral turpitude, and which he regarded as 
strictly proper, and still his acts might, in the 
opinion of the board, be such as were cal- 
culated to deceive or defraud the public. Dif- 
ferent standards might be established by 
different boards. It is well known that the dif- ferent schools of medicine and even of dentistry 
liave widely divergent views as to the treat- 
ment of certain diseases. It must be remem- 
bered that the statute does not prohibit 
advertising, however unprofessional and un- 
ethical we might consider that to be. It only 
prohibits advertising with the view of “de- 
ceiving or defrauding tbe public or in any 
way that would tend to deceive the public.” 
So the members of one school of medicine or 
dentistry might advocate a certain treatment 
and in good faith advertise it to the public, 
which might be condemned by members of an- 
other school as calculated to deceive and de- 
fraud the public. The members of the pro- 
fession are usually men of intelligence and 
good citizens. We do not believe that they 
would be guilty of such a multiplicity of 
wrongful acts that their conduct could not be 
safely regulated by a specified legislative en- 
actment. . . . 
However, the court made it perfectly 
plain that it upheld the right of the 
Legislature to enact a statute providing 
for the revocation of dental licenses, but 
it was pointed out that such a statute 
should designate, or make clear, the acts 
which would warrant the exercise of such 
power. On this point it was said: 
It is competent for the Legislature to de- 
clare for what acts or conduct a license may 
be revoked, and to vest in State boards the au- 
100 
LAW FOR THE DENTIST. LAW FOR THE DENTIST. 
101 
thority to investigate and try the charges 
which may be made under a statute; but 
the statute should specifically name or desig- 
nate the offenses or wrongful acts which shall 
constitute a cause for revoking his license, so 
that the dentist may know in advance whether 
he has violated the terms of the statute. 
The court in conclusion, after dispos- 
ing of other features of the case not 
material to this article, affirmed the 
judgment of the circuit court setting 
aside the order revoking Dr. Blanchard’s 
license, holding, as outlined in the 
opinion, that the parts of the statute re- 
lied upon by the board were too uncer- 
tain and indefinite for enforcement. It 
should be noted, however, that the opin- 
ion was rendered by a divided court, 
Chief Justice McCulloch filing a vigor- 
ous and well-reasoned dissenting opin- 
ion which was concurred in hy Justice 
Smith. 
Tt is believed that the two cases re- 
viewed are fairly illustrative of the 
reasoning of the courts in the respective 
lines of decisions to which they belong. 
And it seems these holdings may be 
summarized as follows: By the weight 
of authority statutes authorizing the 102 
LAW FOR THE DENTIST. 
revocation of dental licenses for cause 
are valid even though the causes are 
stated in general terms. On the other 
hand, the minority rule holds that for 
such statutes to be enforceable they must 
specifically define the causes for revoca- 
tion, so that those concerned may know 
in advance what act or acts will consti- 
tute grounds for such action. CHAPTER XII. 
Right of Physician and Surgeon, by 
Virtue of His License as Such, to 
Practice Dentistry. 
The question of the right of a phy- 
sician and surgeon to practice dentistry, 
by virtue of his license as a physician 
and surgeon, is one of interest to both 
professions. And in this connection, it 
may be stated broadly that, in the ab- 
sence of a statute to the contrary, one 
duly licensed to practice medicine and 
surgery would, it seems, have the right 
to practice dentistry. This on the 
ground that the practice of dentistry is 
a branch of surgery, and a license to 
practice the latter would include the 
former. 
However, during the past few decades, 
this status has been greatly changed by 
legislative enactments which have tended 
to divide the field of medicine and 
surgery, and make dentistry a separate 
calling. Where this is the case we find 
separate statutes; one regulating the 
practice of medicine and surgery, and 
the other regulating the practice of den- 
tistry. And where such dental acts do 
103 104 
LAW FOR THE DENTIST. 
not expressly except physicians and sur- 
geons from their operation (which 
they do, however, in many States), the 
question of the right of a physician to 
practice dentistry, by virtue of his 
license as a physician, is one of some 
difficulty. 
This point has been passed upon in a 
number of well-considered cases, and 
the decisions are not precisely in accord. 
It has been held that one duly licensed 
to practice medicine and surgery may 
also practice dentistry, the latter being 
held to be a branch of surgery, without 
complying with the dental statute. On 
the other hand, other courts have taken 
the position that a license to practice 
medicine and surgery could not also be 
made to cover the practice of dentistry, 
in the face of a statute making them 
separate callings. The reasoning of the 
courts may perhaps be best illustrated by 
a review of a case from each class, and 
as an example of the holding that a 
license to practice medicine and surgery 
also covers the practice of dentistry, 
State vs. Beck, 21 R. I. 288, will serve. 
The facts which culminated in the action 
were, briefly stated, as follows: LAW FOR THE DENTIST. 
105 
The defendant, a duly licensed phy- 
sician and surgeon, was indicted for the 
alleged unlawful practice of dentistry. 
In his defense the defendant entered a 
plea in bar in which he set up the fact 
that he had been licensed to practice 
medicine and surgery in all its branches, 
“upon all parts of the human body, in- 
cluding the teeth,” the contention being 
that, as dentistry was a branch of sur- 
gery, the defendant’s license to practice 
the latter would cover his practice of the 
former without special compliance with 
the dental statute. 
To this plea in bar the attorney-gen- 
eral demurred. The case then reached 
the higher court on the pleadings, and 
in deciding the question raised the 
court first examined the statute regulat- 
ing the practice of medicine and surgery, 
in connection with the act regulating the 
practice of dentistry. In stating its 
conclusions the court reasoned, in part, 
as follows: 
Practice of Dentistry by Physician 
Upheld. 
Now, by the express terms of said chapter 
165, a person holding a certificate, in accord- 
ance with the provisions thereof, is authorized 106 
LAW FOR THE DENTIST. 
to practice medicine and surgery in all its 
branches. Dentistry is now a well-recognized 
branch of surgery. A dentist is a dental sur- 
geon. He performs surgical operations upon 
the teeth and jaw and, as incidental thereto, 
upon the flesh connected therewith. His 
sphere of operations, then, as before intimated, 
is included in the larger one of the physician 
and surgeon. A fair and reasonable construc- 
tion of the two statutes taken together, there- 
fore, comes to this: That the general as- 
sembly, by the use of the broad and general 
language used in said chapter 165 relating to 
the authority to practice medicine and sur- 
gery, must be held to have intended to ex- 
cept physicians and surgeons from the restric- 
tions imposed upon other persons regarding 
the practice of dentistry by said chapter 165 
and the amendments thereto. 
This view is strengthened by the fact, which 
is common knowledge, that it has always been 
the custom in this State, and probably every- 
where else, for physicians to treat ailing teeth, 
to extract teeth, and to perform various other 
professional services which technically come 
within the purview of dentistry. Physicians 
who reside in the country towns especially 
have always been called upon, to a greater or 
less extent, for the performance of such serv- 
ices. And now to prohibit them from thus 
treating their patients would be a source of 
great inconvenience, and, in many cases, of 
extreme hardship and suffering to the latter, 
as well as an interference with the purpose LAW FOR THE DENTIST. 
107 
and legitimate functions of the former. And, 
as said by defendant’s counsel, any construc- 
tion of the law that prevents the general prac- 
titioner from treating any part of the human 
body, or restricts him in the discharge of his 
professional duties, would be a menace to the 
public health, and would deprive the physician 
of the right to practice a branch of his profes- 
sion that is as old as the history of medicine 
itself. 
After further consideration of the 
question before it the court concluded 
by sustaining the defendant’s plea in 
bar. Holding that, under the laws of 
Rhode Island, one duly licensed to prac- 
tice medicine and surgery was entitled 
to practice dentistry, as a branch of 
surgery, without complying with the 
particular statute relating to the prac- 
tice of dentistry. 
The Other Side of the Question. 
This then brings us to a consideration 
of that class of cases in which it is held 
that a license to practice medicine and 
surgery does not, of itself, give the hold- 
er the right to practice dentistry. For 
this purpose State vs. Taylor, 106 Minn. 
218 will serve; the facts involved being, 
in the main, as follows: 108 
LAW FOR THE DENTIST. 
The defendant, a licensed physician 
and surgeon, was convicted of practicing 
dentistry without a license under the 
Minnesota dental act. This act, among 
other things, provided as follows: 
No person shall practice dentistry in the 
State without having complied with the pro- 
visions of this subdivision. . . . Any person 
who shall . . . violate any provisions of this 
subdivision shall be guilty of a misdemeanor. 
. . . All persons shall be said to be practicing 
dentistry, within the meaning of this section 
. . . Who shall for a fee, salary, or other re- 
ward paid or to be paid either to himself or 
to another person . . . replace lost teeth by 
artificial ones. 
The defendant it appears extracted 
two teeth for one of his patients and 
took an impression which he sent to a 
dental laboratory. Thereafter the arti- 
ficial teeth were returned to the defend- 
ant, who, in turn, delivered them to his 
patient, receiving a fee of $38 for his 
services. 
It was conceded that the defendant 
did not have a license to practice den- 
tistry. The defendant, however, con- 
tended that his license as a physician 
and surgeon entitled him “to engage in 
the incidental practice of dentistry on LAW FOR THE DENTIST. 
109 
his own patients.” This, it seems, on 
the ground that the practice of medicine 
and surgery included the practice of 
dentistry. The case went up on appeal, 
and while conceding the practice of 
medicine and surgery included the prac- 
tice of dentistry, “in its broad and com- 
prehensive sense,” the court in reply, in 
part, said: 
But, for reasons of public policy, with 
which we have no particular concern, the 
Legislature adopted the policy of dividing the 
field of medicine and surgery, and making a 
separate profession of a part thereof. . . . 
It was thought that men who engage in the 
treatment of the diseases of the dental organs 
should receive special preparation and be 
specially licensed to practice that particular 
branch or department of medicine and sur- 
gery. ... A State board of dental examiners 
was created and authorized to determine who 
should be licensed and entitled to practice 
dentistry in the State. ... A department 
of dental surgery was also established at the 
university, with a course of study, the satis- 
factory completion of which would entitle the 
student to a special degree of dental surgery. 
An examination of this course shows that it 
includes a considerable part of the work re- 
quired in the medical school, but it also in- 
cludes studies which relate particularly to 
diseases of the dental organs and others de- 110 
LAW FOR THE DENTIST. 
signed to insure efficiency in the mechanical 
work connected with the treatment. . . . 
The court having examined the stat- 
ute relating to the practice of medicine 
and surgery earlier in its opinion, now 
directed its attention to the dental 
statute, heretofore quoted from. Then 
in stating its conclusions, in the light 
of these statutes, the court, in part, 
said: 
License to Practice Medicine Held Not 
to Cover Dentistry. 
The Legislature has thus defined both the 
practice of medicine and the practice of den- 
tistry, and made of them two distinct profes- 
sions. This statute relating to dentistry 
makes no exception in favor of one who holds 
a certificate entitling him to practice as a 
physician and surgeon. We can find no im- 
plied exceptions in this statute. The words 
“no person,” in a criminal statute, are to be 
given their literal meaning. From an exami- 
nation of the statutes of other States relating 
to the practice of dentistry, we learn that 
many contain express exceptions in favor of 
physicians and surgeons. Probably the most 
of them permit physicians to extract teeth or 
perform such other comparatively simple 
work. In the absence of any such exceptions, 
we must conclude that the Legislature intended 
to restrict the scope of the practice of the LAW FOR THE DENTIST. 
111 
physician and surgeon, and require him, if he 
desires to practice dentistry, to obtain a li- 
cense from the State Board of Dental Examin- 
ers in addition to his other certificate. . . . 
In accordance with the foregoing opin- 
ion the court concluded by affirming 
the judgment of the lower court, in 
which the defendant was convicted of 
practicing dentistry without a license, 
holding that the possession of a license 
to practice medicine and surgery did not 
entitle the defendant to practice dentis- 
try in Minnesota unless he also com- 
plied with the dental statute and ob- 
tained a license to practice dentistry. 
It is believed that the two foregoing 
cases constitute a fair cross-section of 
the case law of the subject under dis- 
cussion, and it is obvious from their 
holdings that, as cases of this kind must 
necessarily be decided in the light of the 
statutes of the State in which the ques- 
tion arises, the subject cannot be covered 
by the statement of a hard-and-fast -rule. 
However, generally speaking, the law on 
the question of the right of a physician, 
by virtue of his license as such, to prac- 
tice dentistry, may be summarized as 
follows: 112 
LAW FOR THE DENTIST. 
Summary. 
In the absence of a statute to the con- 
trary one holding a license to practice 
medicine and surgery will also have the 
right to practice dentistry. And in the 
States which except physicians from the 
operation of their dental acts, either en- 
tirely, or in part, physicians of course 
have the right to practice dentistry so 
long as they keep within the restric- 
tions, if any, of the Dental Act. How- 
ever, in the States where the practice of 
dentistry has been made a separate pro- 
fession from medicine, and where phy- 
sicians and surgeons have not been ex- 
cepted, the court decisions construing 
them are not in accord. In Rhode 
Island, as we have seen, the court con- 
strued such a statute as excepting phy- 
sicians and surgeons from its operation. 
On the other hand, the Minnesota court 
declined to imply an exception, in the 
absence of express terms to that effect, 
and held that the holder of a license to 
practice medicine and surgery was not 
entitled to practice dentistry by virtue 
of such license. CHAPTER XIII. 
What Constitutes “The Practice of 
Dentistry” Within Meaning of 
Dental Practice Statutes. 
In the enforcement of statutes regulat- 
ing the practice of dentistry and provid- 
ing penalties for violations thereof, the 
courts have from time to time been called 
upon to define the “practice of dentistry” 
in the light of the provisions of these 
statutes. The question has usually been 
raised by the contention of an accused 
person that the acts complained of did 
not amount to the “practice of dentistry” 
within the meaning of the particular 
dental act under which such a person was 
indicted, which necessitated the constru- 
ing of the statute in the light of the par- 
ticular acts ascribed to the person ac- 
cused. 
And in this connection, it may be 
stated at the outset that precise uni- 
formity in the holdings of this class of 
cases cannot be expected, because of the 
varying provisions of the dental acts of 
the various States. However, the point 
113 114 
LAW FOR THE DENTIST. 
is without doubt one of considerable 
interest to the dental profession, and an 
examination of some of the cases in which 
dental statutes have been construed, in 
relation to the subject under discussion, 
may prove of interest and profit. And 
as a beginning State vs. Heed, (58 Ark. 
331, will serve: 
In this case the defendant was in- 
dicted for practicing dentistry without 
first obtaining a certificate. It seems the 
defendant was a student in the office of 
Dr. Milam, a duly licensed dentist, and 
the indictment alleged that he extracted 
teeth and filled them. He made no 
charge for the extraction, but, it appears, 
he charged and received the sum of $10 
for the filling; and further, it seems, the 
defendant did not make the charge in the 
name of his employer, Dr. Milam, but for 
himself. 
jNTow, the Arkansas statute, under 
which the indictment was drawn, pro- 
vided: “It shall be unlawful for any 
person to practice or attempt to practice 
dentistry, or dental surgery, in the State 
of Arkansas, without first having re- 
ceived a certificate from the Board of LAV,7 FOR THE DENTIST. 
115 
Dental Examiners; provided, this shall 
not be construed as preventing any regu- 
lar licensed physician from extracting 
teeth, nor to prevent any other person 
from extracting teeth, when no charge is 
made therefor by such person.” 
Upon the trial of the cause the trial 
court, among other tilings, instructed 
the jury: “If the defendant had set up 
as a regular practicing dentist, he would 
be guilty; hut if he was there learning 
the business under Dr. Milam, and prac- 
ticing under his directions and advice, 
he is not guilty.” 
The trial resulted in the acquittal of 
the defendant. An appeal was taken, 
and in reversing the judgment of the 
lower court, the Supreme Court of Ar- 
kansas, in part, said: 
From the language of the act under which 
this indictment was found, it is impossible to 
escape the conclusion that the performance 
of dental work, and charging and receiving 
pay therefor, is practicing dentistry. The 
theory of the trial court seems to have beer 
that, notwithstanding this, yet, as the defen- 
dant was, when he did this work, a mere stu- 
dent and doing his work under the direction 
Student Held Answerable to Statute. 116 
LAW FOR THE DENTIST. 
of Dr. Milam, a licensed dentist, he was not 
answerable to the law on the subject. It 
must be noted, however (if this is any de- 
fense at all), that while this relation existed 
between the defendant and Dr. Milam at the 
time, so far as the dental work was concerned, 
yet the charge for the same was not made in 
the name of Dr. Milam nor was the pay re- 
ceived for him. The charge was made by the 
defendant for himself, independent of Dr. 
Milam, and so was the pay received by him. 
Another case of this class, somewhat 
similar to the foregoing, was State Board 
of Registration and Examination in Den- 
tistry vs. Terry, 73 X. J. L. 156. The 
facts involved being substantially as fol- 
lows : 
Section 8 of the New Jersey dental 
act provided in substance that the act 
should not prohibit a registered student 
of a licensed dentist from assisting in 
dental operations, in the presence of and 
under the direct and immediate personal 
supervision of his preceptor. 
An action was brought against the de- 
fendant for violation of the dental act 
and the trial court charged, in part. 
“That if the jury found that the defen- 
dant while practicing was doing so as a LAW FOR THE DENTIST. 
117 
student of a regularly licensed dentist, 
the verdict should be for the defendant.” 
The trial resulted in a judgment for the 
defendant. An appeal was taken and in 
passing upon the foregoing charge of the 
trial court the higher court, in part, 
said: 
We think the charge was erroneous. The 
exception in Section 8 is not an exception of 
all students in all circumstances. It is nar- 
rowed to a registered student while assisting 
his preceptor in the preceptor’s presence, and 
under his direct and immediate personal su- 
pervision. . . . There was evidence indi- 
cating that the defendant was not an assist- 
ant, but rather a principal, and that the den- 
tal operations he performed were performed 
independently and on his own responsibility, 
and not under the direct and immediate per- 
sonal supervision of the alleged preceptors. 
The defendant did not bring himself within 
the exception of Section 8 merely by proving 
that he was a student without proving the 
other qualifications in that section. 
The judgment of the lower court was 
thereupon reversed and the case re- 
manded for a new trial. 
It will be observed that in the two 
preceding cases the holdings turned, on 
erroneous instructions given by the trial 118 
LAW FOR THE DENTIST. 
courts, in relation to the facts and the 
terms of the respective statutes being 
construed. Now we come to cases of a 
somewhat different class in that their 
holdings turn more on the particular acts 
complained of, in relation to the terms 
of the statutes, which it was alleged had 
been violated. For example: 
Washington Statutes Construed. 
In State vs. Newton, 39 Wash. 491, the 
defendant was charged with practicing 
dentistry without a license in that lie did 
“treat a disease and lesion of the human 
teeth and did correct malpositions of the 
human teeth. . . .” The evidence 
showed that a patient went to the office 
where the defendant was employed and 
had dental work done; that this patient 
secured a set of false teeth, that they did 
not fit properly, and that the patient re- 
turned them, another impression was 
taken, and a neAV set of teeth was made; 
and that this defendant performed the 
work outlined. 
The trial in the lower court resulted 
in the conviction of the defendant. An 
appeal was taken and in passing upon the LAW FOR THE DENTIST. 
119 
record the higher court, among other 
tilings, said: 
It is contended by appellant [defendant 
below] that the acts testified to did not con- 
stitute the practice of dentistry, as alleged in 
the information. Did the taking of the im- 
pression, the making of false teeth, and the 
fitting thereof in the mouth constitute a cor- 
rection of a “malposition” or of “malposi- 
tions” of the jaws? This is tbe question. As 
to whether or not making the teeth or taking 
the impression would, each separately or to- 
gether, constitute this, we do not decide. But 
taken together with the actual fitting and ad- 
justment to the jaws, we hold that it con- 
stitutes a “correction of malposition of the 
jaws” within the meaning of the statute. 
The case was reversed on error in the 
admission of certain evidence, which does 
not, however, detract in any way from 
the holding relative to the acts com- 
plained of constituting the practice of 
dentistry. Another interesting case of 
this class was State vs. Thompson, 48 
Wash. 683; the facts being in the main 
as follows: 
The defendant was convicted of prac- 
ticing dentistry without having a license. 
The evidence showed that the defendant 
agreed to make a mouth plate for a 120 
LAW FOR THE DENTIST. 
patient for $5; that in fitting the plate 
he extracted a tooth, took an impression, 
and collected $3 on account. It was 
also shown that at the time the defendant 
informed the patient that he was making 
no charge for the extraction of the tooth. 
The case reached the higher court on ap- 
peal and in deciding whether or not the 
acts set out constituted the practice of 
dentistry the court, in part, said: 
Taking Impression Held “Practice of 
Dentistry.” 
The acts of appellant [defendant below] 
clearly constituted the practice of dentistry 
. While appellant made no indepen- 
dent charge for extracting the tooth, that was 
a necessary part of the work in fitting the 
plate to the mouth, because the plate could 
not be fitted or the impression taken without 
the removal of the tooth. The charge, there- 
fore, covered that as much as any other part 
of the work. But the taking of the impres- 
sion was itself practicing dentistry, because 
that act was for the purpose of correcting a 
malformation of the jaw by inserting a tooth 
in place of the one removed. The evidence 
was clearly sufficient 
The judgment of the lower court was 
thereupon affirmed. LAW FOR THE DENTIST. 
121 
And in State vs. Sexton, 37 Wash. 110, 
the defendant was convicted of practicing 
dentistry without having a license, and 
prosecuted an appeal to the higher court, 
contending that the evidence was not 
sufficient to justify the submission of the 
case to the jury. In affirming this judg- 
ment the higher court, among other 
things, said: 
There was evidence that the appellant 
cleaned the teeth of Netzer, [the patient] 
removing tartar therefrom, and made an ex- 
amination of them in order to give an esti- 
mate of the cost of “having them fixed”; 
that he “sounded” them and “picked” them. 
While part of this evidence was contradicted, 
it was nevertheless sufficient to carry the case 
to the jury, and, if believed, to justify a ver- 
dict of guilty under the provisions of the law 
in question. . . 
The foregoing decisions are fairly 
illustrative of that class of cases in 
which the courts have defined “the prac- 
tice of dentistry,” and found the alleged 
acts complained of to constitute a vio- 
lation of the law. And now let us ex- 
amine a case in which the acts com- 
plained of, owing to the provisions of the 
statute in the State in which they arose, 122 
LAW FOR THE DENTIST. 
were held not to constitute the “practice 
of dentistry.” For this purpose State 
vs. Faatz, 83 Conn. 300, will serve; the 
facts out of which the action grew were 
substantially as follows : 
The defendant, it appears, was a young 
man employed in the office of Dr. Jack- 
son, a duly licensed dentist, in the State 
of Connecticut. The defendant did not 
have a license to practice dentistry, but 
he placed some cotton in a tooth of a 
patient, and the next day he filled the 
tooth. A charge of $1.50 was made 
for this, and collected by the defendant, 
not for himself, but for Dr. Jackson, his 
employer. 
Thereafter an information was filed 
against the defendant charging that he 
did “perform dental operations on 
patients, in the office of a licensed den- 
tist, without a license from the Dental 
Commissioners of the State of Connecti- 
cut.” The State contended that the 
performance of the acts described above 
constituted a violation of the Connecti- 
cut- dental statute. This statute pro- 
vided in substance that no person 
should practice dentistry without first LAW FOR THE DENTIST. 
123 
obtaining a license from the dental com- 
missioners, and, further, that “the un- 
lawful practice of dentistry for each 
week shall be a separate offense.” From 
a conviction in the lower court an ap- 
peal was taken, and in construing this 
statute, in connection with the charge 
in the information, the higher court, 
among other tilings, said: 
What the Court Decided. 
A “dentist” is one whose business is to 
clean, extract or repair natural teeth, and to 
make and insert artificial ones. “Dentistry” 
is the art or profession of a dentist. The 
“practice of dentistry,” then, is the practice 
of the art or profession of a dentist. Engag- 
ing in this practice of dentistry without a li- 
cense is made a crime by this law. 
This information does not charge the de- 
fendant with the offense of “engaging in the 
practice of dentistry without a license.” 
Quite evidently the public prosecutor did not 
intend to so charge. If he had, he would un- 
doubtedly have followed the language of the 
statute. But he does charge that the defen- 
dant performed dental operations on patients 
in the office of a licensed dentist without a 
license. The theory of this prosecution is 
that an unregistered assistant or student of 
a licensed dentist cannot perform a single 
dental operation without becoming liable Tin- 124 
LAW FOR THE DENTIST. 
dor this act, and that the act forbids this. . . . 
This view is erroneous. Such dental opera- 
tions are not in terms forbidden, and the 
language of the act cannot be extended by 
implication. 
We cannot indorse the position that per- 
forming a dental operation is the same thing 
as engaging in the practice of dentistry. This 
appears to have been tbe view of the trial 
court. In the charge to the jury the court 
makes no distinction between “engaging in 
the practice of dentistry” and “performing a 
single dental operation.” ITe treats them as 
one and the same thing. There was error in 
this and consequent harm to the defendant. 
A young man may be preparing to enter 
the dental profession, but he cannot, within 
the meaning of the statute, be said “to en- 
gage in the practice of dentistry” until he 
embarks in it, until be holds himself out as a 
dentist, either by a series of continuous acts, 
covert or open, or by advertising himself in 
some way as a dentist or as a doctor of dental 
surgery. If he holds himself out to the pub- 
lic as a duly qualified dentist, embarked in 
the profession, and oilers to practice as such, 
this would be engaging in the practice of 
dentistry within the true sense and meaning 
of this act, even though his lirst patient had 
not yet called. . . . This act is intended 
to protect the dental profession from igno- 
rant and incompetent practitioners, as well as 
to protect the public against the same kind of LAW FOR THE DENTIST. 
125 
ignorance and incompetence in men setting 
themselves up as dentists, or in other words, 
“engaging in the practice of dentistry.” 
The statute is a benign one and its purjiosc 
is good, and if properly and legitimately en- 
forced, it is a useful one; but it should not 
be strained by construction to include terms 
and restrictions not intended by the Legisla- 
ture, as that intent is manifested by the 
N 
language used. . . . 
Had the Legislature really intended to 
make it a crime to perform any dental opera- 
tion without a license, it would and could 
have found language to express that inten- 
tion with clearness and certainty. It had no 
difficulty in expressing such intention clearly 
in the act relating to the practice of medi- 
cine passed at the same session. . . . 
Had the Legislature anticipated the case 
now before the court, they perhaps would 
have employed in this statute expressions 
prohibitory of the act which this defendant 
is being prosecuted for. Such expressions, 
however, do not appear there, and this 
statute therefore has not been violated. . . . 
In conclusion, the court reversed the 
judgment rendered below, holding, as 
outlined in the opinion, that the infor- 
mation upon which the case was based 
did not charge a crime within the mean- 
ing of the terms of the dental statute re- 
lied upon. 126 
LAW FOR THE DENTIST. 
It is believed the foregoing reviews 
present a fairly representative section of 
the case law of the subject under discus- 
sion. And as each case has necessarily 
been decided on the facts involved, in the 
light of a particular statute, it is not 
then surprising that the holdings arc 
hardly subject to classification except as 
to results. This, however, does not de- 
tract from their individual value, for 
each holding announces the rule of con- 
struction followed in the State where 
decided. C H A PTE R XIV. 
Right of Dentist to be Excused from 
Jury Duty as a “Practitioner of 
Medicine.” 
Statutes exempting physicians and 
surgeons from jury duty have, generally 
speaking, been upheld on the grounds of 
public welfare. For it is obvious that 
to compel a practicing physician and 
surgeon to serve upon a jury, perhaps 
involving a trial of many days or weeks, 
might work a real hardship upon the 
community which he serves. And while 
statutes of this kind vary somewhat in 
their terms, they commonly prescribe 
that a “practitioner of medicine” shall he 
exempt from jury duty. This, then, 
raises the question of whether or not a 
dentist is a “practitioner of medicine” 
within the meaning of the statutes of this 
kind. 
The point, while certainly of interest 
to the dental profession, appears to be 
one upon which there is little authority. 
However, in State ex rel. Flickinger vs. 
127 128 
LAW FOR THE DENTIST. 
Fisher, 119 Mo. 344, the question was 
passed upon in Missouri, the action being 
based upon the following facts: 
The relator, a practicing dentist in 
good standing, claimed exemption from 
jury duty on the ground of being a 
“practitioner of medicine” under the 
provisions of the Missouri statute. The 
section of the statute upon which this 
contention was based provided that one 
actually exercising the functions of a 
“practitioner of medicine” should be ex- 
empt from jury duty. 
This claim of the relator was opposed, 
it being contended that the practice of 
dentistry, in the light of the Missouri 
statute exempting “practitioners of medi- 
cine” from jury duty, was not the prac- 
tice of medicine. After stating the ques- 
tion before it the higher court proceeded 
to examine the qualifications required 
under the Missouri statutes of those 
seeking to practice medicine and surgery, 
and of those seeking to practice dentistry. 
In this connection it was noted that 
“every person practicing medicine and 
surgenq in any of their departments, 
shall possess the qualifications required 
by this article.” The article then pre- LAW FOR THE DENTIST. 
129 
scribed that if the applicant was a 
graduate of medicine lie should present 
his diploma to the State board of health, 
and the latter should issue a certificate. 
The article also provided that those who 
were not graduates of medicine should 
he entitled to certificates, after a suc- 
cessful test before the board as to their 
qualifications. The article also provided 
a fine of from $50 to $500, to which 
might be added a prison sentence of from 
50 to 365 days, which might be imposed 
upon one convicted of the unlawful 
practice of “medicine and surgery in any 
of their departments.” 
On the other hand, the section entitled 
“Dentistry,” provided in substance that 
it should be unlawful for anyone to prac- 
tice dentistry or dental surgery in the 
absence of a diploma. There were no 
requirements, however, that such diploma 
should be filed with the board of health, 
nor for any examination by the board of 
an applicant’s qualifications; the appli- 
cant simply -filed his diploma with the 
proper official and received a certificate 
entitling him to practice dentistry under 
the statute, the penalty for violation of 
the dental act being a fine of from $25 130 
LAW FOR THE DENTIST. 
to $200. The court, after a considera- 
tion of the respective statutes governing 
tlie practice of medicine and surgery and 
the practice of dentistry, among other 
things, said: 
The Statute Construed. 
These different penalties . . . evidently 
go to show that the Legislature regarded the 
violation of Article 1 by a physician as a 
more serious offense, and therefore to be pun- 
ished more severely than a violation of Ar- 
ticle 3 by a dentist. In a word, by those 
very penalties they drew a distinction be- 
tween a doctor and a dentist. 
Relator [the dentist] relies on a certificate 
obtained under the provisions of Article 3 
aforesaid, from the city register, on presen- 
tation to the latter, by the relator, of his 
diploma, which certificate among other 
things states that relator’s name had been 
entered on the “Roll of Dental Surgeons’’ in 
the city register’s office. 
Looking at these statutory provisions hear- 
ing on the point in hand, the question men- 
tioned at the outset recurs to the mind: Do 
those provisions, or any of them, exempt re- 
lator from the performance of jury duty? 
Here it cannot be successfully claimed that 
relator finds any exemption in the terms of 
the statute, for certainly he is not a 
“practitioner of medicine and surgery in LAW FOR THE DENTIST. 
131 
any of their departments,” as defined in Sec- 
tion 6871, nor does he exhibit the qualifications 
required by that section, to wit, a diploma 
from a legally chartered medical institution 
in good standing and a certificate from the 
hoard of health. His contention, stripped of 
all verbiage and disguises, and stated baldly 
and boldly, simply is that, inasmuch as he 
possesses a diploma, granted him by a repu- 
table dental college, and a certificate of the 
city register showing the filing of that di- 
ploma and the enrolment of his name on the 
“Roll of Dental Surgeons,” that therefore 
he is entitled to the same exemptions from 
jury service as if, instead of qualifying un- 
der the provisions of Section 6889 [those re- 
lating to dentists], he had actually qualified 
under those of Section 6871 [those relating to 
doctors]. This contention, . . . cannot 
prevail; it will not bear a moment’s scrutiny. 
Either relator is a practitioner of medicine 
and surgery, or he is not. If not, that de- 
termines this litigation against him; if he 
is such a practitioner, then this fact avails 
him nothing until he complies with the terms 
and conditions of Section 6871 and its asso- 
ciate sections. The law, by the terms it em- 
ploys, means a lawful “practitioner of medi- 
cine,” not one who fails to comply with its 
requirements. Relator makes no pretense of 
such compliance. The statute in question be- 
ing couched in unambiguous terms, its words 
are to be taken “in their plain or ordinary 
and usual sense.” 132 
LAW FOR THE DENTIST. 
The premises considered, we hold that, on 
the facts presented in this record, relator is 
not exempt from jury duty, and hence deny 
the peremptory writ. 
It will be noticed that the court, in the 
foregoing opinion, appears to have based 
its decision solely upon the wording of 
the statutes, without consideration of the 
basic reason for the exemption statute 
in favor of physicians and surgeons. In 
other words, it seems the court gave no 
credit to the analogous relationship to 
the general public occupied by the doctor 
and the dentist; and this despite the fact 
that the main reason for allowing a doc- 
tor an exemption from jury service, i. e., 
the public welfare, seems to apply with 
equal force to the dentist. 
Perhaps had the court started its 
reasoning upon the assumption that 
dentistry is a branch of medicine and 
surgery, as it has been held, and not 
seemingly confined itself to a strict con- 
struction of the words employed, without 
consideration of the reason for the con- 
ceded exemption of doctors from jury 
duty, a different conclusion might have 
been reached. This appears very likely in 
view of the fact that the opinion reviewed LAW FOR THE DENTIST. 
133 
above was rendered by a divided court, 
four judges concurring, while three 
joined in a dissenting opinion. This 
dissenting opinion is well worth reading 
in connection with the review of the case, 
as it tends to support this view of the 
majority opinion; and incidentally it 
furnishes a striking illustration of how 
learned men may disagree in their con- 
clusions drawn from the same facts. In 
this dissenting opinion it was, among 
other things, said: 
Excerpt from the Dissenting Opinion. 
The question turns upon the meaning of 
the provision that “No person . . . ex- 
ercising the functions of . . . practi- 
tioner of medicine . . . shall be com- 
pelled to serve on any jury. 
Exemption from jury service is not granted 
as a personal favor, but for the public com- 
fort and convenience, and in the light of this 
reason for its existence should the law govern- 
ing such service be interpreted and adminis- 
tered. 
While the law on this subject and the rea- 
son for its existence remains the same today 
as on the day of its first enactment, its ap- 
plication now is not so simple as it was in 
the beginning, and for many years thereafter. 
While the early practitioners of medicine in 134 
LAW FOR THE DENTIST. 
the State were not necessarily M.D.’s or doc- 
tors of medicine in the technical sense of the 
schools, they were all called doctors, and as 
such exercised the functions of doctors of 
medicine, surgeons and dentists, and generally 
treated indiscriminately all the ailments that 
human flesh and bone is heir to, whether ex- 
ternal or interna], according to the light they 
possessed; and such continued to be the case 
down to the memory of the present genera- 
tion, and doubtless still remains so in many 
of the rural districts of the State. But in 
the cities and more populous districts we now 
find the functions formerly exercised by the 
doctor or practitioner of medicine of the olden 
time, divided up and exercised by specialists, 
each confining himself generally to the prac- 
tice of a particular branch or department of 
the science, such as surgeons, dentists, ocu- 
lists, aurists, etc. 
While dentistry, as an independent calling, 
may have had an humble and comparatively 
recent origin, it has now become a very im- 
portant branch of medical science,* and there 
arc but few who have arrived at the age of 
those who are usually called to serve as 
jurors, who would not testify that when the 
exercise of its functions become necessary it is 
as exigent as the exercise of most of the other 
functions of the general practitioner. 
The fact that this branch of the medical 
* Address of N. S. Davis, M. D., president 
of the American Medical Association. LAW FOR THE DENTIST. 
135 
profession lias grown to such proportions as 
to have its own independent colleges, and to 
confer its own degrees, and that it has be- 
come necessary that its practice should be 
regulated by statute . . . indicates the 
importance of the exercise of its functions to 
the public welfare. The fact that it is regu- 
lated in a separate article and as an indepen- 
dent calling from that of an M.D., does not in 
any manner affect the character of those func- 
tions. . . . 
The relator under the present law is au- 
thorized to exercise all the functions thus 
recognized that belong to his department of 
medicine. They are now more extensive, 
more important and more exigent to the pub- 
lic welfare than they ever were before. He 
is within the purview of both tbe letter and 
reason of the law that exempts “a practi- 
tioner of medicine” from jury duty, and 
should have a peremptory writ commanding 
his discharge. 
So we have both sides of the question 
under discussion presented in this Mis- 
souri case. And while, of course, the 
majority opinion announces the law of 
the case, there is no gainsaying1 the fact 
that the reasoning in the dissenting 
opinion is very persuasive. However, in 
fairness to the majority opinion, it 
should he remembered that the question 
before it was not simply whether a den- 136 
LAW FOR THE DENTIST. 
tist was a practitioner of medicine, but 
rather whether a dentist was a prac- 
titioner of medicine within the meaning 
of the Missouri statute exempting such 
from jury duty. With this in mind it is 
obvious that the court was presented with 
a difficult question as is shown by the 
disagreeing opinions rendered. CHAPTER XV. 
Duties and Liabilities of Dentist in 
the Administration of Anesthetics. 
Generally speaking, the dentist is 
held to a high degree of responsibility in 
the administration of anesthetics; he is 
bound to know that lie is employing 
dangerous agencies, and his responsi- 
bility begins with his examination of the 
patient with this in view. It follows that 
he may be liable in malpractice if injury 
results from his negligence in the ad- 
ministration of the anesthetic, or in the 
conduct of the operation in connection 
therewith. This point is illustrated in a 
number of cases, among them McGhee 
vs. Schiffman, 4 Cal. App. 50, which in- 
volved the following facts: 
The defendant dentist undertook to 
extract certain teeth for the plaintiff, 
and with this in mind administered an 
anesthetic. Four teeth were extracted 
during this period, and the plaintiff was 
placed a second time under the influence 
of the anesthetic for the purpose of ex- 
137 138 
LAW FOR THE DENTIST.. 
tracting three more teeth. The plaintiff 
was rendered entirely unconscious during 
these operations, and when she regained 
consciousness, after the second adminis- 
tration, she was strangling and coughing. 
The subsequent history of the case, as 
described in the report, was as follows: 
That she continued this coughing and be- 
came sick; that an abscess formed in the 
lower lobe of the lung and quantities of yel- 
low pus were expectorated; that her condi- 
tion was such as might be expected to result 
from a foreign substance in the lung; that 
afterward, during a fit of coughing she ex- 
pelled from her lungs a tooth. It appears 
further that plaintiff was in perfect health 
before she entered defendant’s office to have 
such teeth extracted; that from that day she 
began to be sick and thereafter was con- 
tinuously under the care of a physician; 
that after the tooth was expelled, though in 
a weak condition, she began to improve. 
The instant suit was thereafter filed 
against the defendant for damages on 
account of the injuries described above, 
the contention of the plaintiff being that 
her injuries were caused by the defen- 
dant’s negligence. The trial resulted in 
a judgment for the plaintiff, and the 
defendant appealed, contending, among LAW FOR THE DENTIST. 
139 
other things, that the evidence was in- 
sufficient to establish negligence on his 
part. In reviewing the evidence on this 
point the higher court, in part, said: 
It was further in evidence that by the use 
of ordinary care the extractor could keep the 
mouth of the patient clear of blood and in 
case a tooth should escape from the forceps, 
as is frequently the case, he is able to re- 
move it; that constant care is necessary to 
be exercised that teeth may not escape into 
the trachea; that a skilled operator keeps 
track of the teeth as extracted and knows 
when he has taken them all from the mouth, 
and examines the teeth actually extracted to 
see that no fragments are left in the mouth; 
that in the exercise of ordinary care the 
operator could discover whether any of the 
teeth or any fragments thereof had not been 
removed from the mouth. It further appears 
that a tooth slipping from the forceps may 
pass into the lungs; that the use of nitrous 
oxid as an anesthetic would increase the pos- 
sibility of a tooth escaping from the mouth 
into the windpipe. 
Defendant Held Negligent. 
After the foregoing examination of the 
evidence the court in announcing its 
conclusion, among other things, said: 
There is no evidence in the record that de- 
fendant took any of the precautions before 140 
LAW FOR THE DENTIST. 
mentioned, or made any observations to see 
whether or not lie had completed liis task. 
In addition to all this, there was evidence 
tending to show that ordinarily a patient 
regaining consciousness will not cough; that 
if coughing and strangling ensue after con- 
sciousness is regained, it is recognized as an 
evidence of the fact that a foreign substance 
has escaped, and that unusual and great pre- 
cautions are thereupon taken by the oper- 
ator to cause its immediate removal; that 
notwithstanding plaintiff’s coughing and giv- 
ing every evidence of having some foreign 
substance in her windpipe, no attention was 
paid to her by the defendant and no effort 
made to ascertain the cause of her unusual 
condition. There was, therefore, competent 
evidence tending to establish the averments 
of the complaint, not only as to the negli- 
gence, but as to the proximate cause of the 
injury. . . . 
The court thereupon affirmed the judg- 
ment rendered in the lower court in favor 
of the plaintiff. Holding that the evi- 
dence sustained the finding of negligence 
against the defendant which permitted a 
recovery by the plaintiff. 
Another interesting case of this class, 
which contains a valuable discussion of 
the degree of care required of the dentist 
in the use of anesthetics, was Keily vs. 
Colton, 1 New York City Court, 439. LAW FOR THE DENTIST. 
141 
The facts which culminated in the ac- 
tion were, considerably abbreviated, as 
follows: 
The defendants were dentists, and in 
extracting a tooth for the plaintiff, the 
latter being under the influence of an 
anesthetic at the time, permitted a part 
of the tooth to escape and go down the 
plaintiff’s throat. The plaintiff suffered 
pain and in about four weeks, during a 
coughing attack, the tooth was expelled. 
The instant suit for damages was there- 
after filed, and resulted in a verdict for 
$500, in favor of the plaintiff. The de- 
fendants appealed and in passing upon 
the record, and announcing the rule of 
care required of the defendants in situa- 
tions of this kind, the higher court, in 
part, said: 
Highest Skill and Diligence Required. 
There was nothing hurtful in the anes- 
thetic administered to the plaintiff, and the 
fact that he was put under its influence is 
materia] only in determining the amount of 
care which the defendants were called upon to 
exercise. They knew that the plaintiff, while 
under the influence of the anesthetic, had no 
control of his faculties; that they were 
powerless to act, and that he was unable to 142 
LAW FOR THE DENTIST. 
exert the slightest effort to protect himself 
from any of the probable or possible conse- 
quences of the operation which they had 
undertaken to perform. He was in their 
charge and Tinder their control to such an 
extent that they were required to exercise 
the highest professional skill and diligence 
to avoid every possible danger, for the law 
imposes duties upon men according to the 
circumstances in which they are called to 
act. In this case skill and diligence must 
be considered as indissolubly associated. The 
professional man, no matter how skilful, who 
leaves an essential link wanting or a danger 
unguarded in the continuous chain of treat- 
ment is guilty of negligence, and if the 
omission results in injury to the patient, 
the practitioner is answerable. 
After the foregoing statement of the 
rule of care required in situations of this 
kind, the court directed its attention to 
the quantum of evidence necessary to 
sustain a verdict, in connection with the 
nature of the injury complained of. 
With the instant case in mind the court, 
in part, said: 
The defendants were employed to take the 
diseased tooth out; instead of doing which 
they allowed part of it to go down the 
plaintiff’s throat. This was out of the or- 
dinary course of treatment, and how such an 
unusual result was brought about was a fact LAW FOR THE DENTIST. 
143 
peculiarly within the knowledge of the de- 
fendants, which they were required to ex- 
plain, and it was for the jury to say whether 
their explanation was satisfactory or not. 
The quantum of evidence necessary to 
make out a prima facie case of negligence 
is very slight in some cases, while in others 
more strict proof is required. Often the in- 
jury itself affords sufficient prima facie evi- 
dence of negligence. . . Although the mere 
happening of an accident is not in general 
prima facie evidence of negligence, yet the ac- 
cident may be of such a nature that negligence 
must be assumed, from the unexplained fact of 
the accident happening. . . . There was evi- 
dence offered by the plaintiff showing that 
while the defendants drew the tooth the 
forceps slipped. This fact, combined with the 
unusual circumstance that the tooth went 
down instead of coming up, was sufficient to 
carry the case to the jury upon the question 
of negligence. . . . 
In conclusion the court said: 
The case was fairly tried and submitted 
to the jury, and their verdict, in view of all 
the facts and the pain and suffering which 
the plaintiff endured, cannot be said to be 
improper nor excessive. It follows that the 
judgment must be affirmed, with costs. 
When Dentist Not Liable. 
Iii the foregoing cases, it will be noted 
that the actions were based on alleged 144 
LAW FOR THE DENTIST. 
negligence of the defendants in perform- 
ing the operations while the patients 
were under the influence of anesthetics. 
This, then, brings us to a consideration 
of a different phase of the question which 
concerns itself with the limitation of 
the dentist's responsibility in situations 
of this kind. And in this connection it 
may be stated: 
That while, as we have seen, the den- 
tist is held to a high degree of responsi- 
bility in the administration of anes- 
thetics, yet he is only bound to look to 
natural and probable effects. In other 
words, he is not liable for injuries re- 
sulting from the peculiar condition or 
temperament of his patient of which he 
did7 not have knowledge. This point 
may be illustrated by a brief review of 
Bolger vs. Winslow, 5 Phil. 136. 
In this case the plaintiff was a street- 
car driver, and about one year before the 
injury complained of had suffered an ac- 
cident by being thrown from his car and 
striking his head. He had, it appears, 
continued to work and thereafter he suf- 
fered with his teeth, and went to the 
office of the defendant for the purpose 
of having the offending teeth extracted. LAW FOR THE DENTIST. 
145 
The defendant had no knowledge of 
the prior accident that the plaintiff had 
suffered, and administered chloroform in 
the extraction of the teeth. The chloro- 
form, it appears, did not operate as soon 
as usual, and tended to excite the pa- 
tient. Insensibility was finally obtained, 
however, and the teeth were extracted. 
The plaintiff walked home after the 
operation and complained of dizziness 
and a tendency to totter. The next day 
he complained of thickness of utterance 
and numbness of one side and arm. 
Several days thereafter he suffered a 
partial paralysis from which he had not 
recovered when the suit against the de- 
fendant, dentist, was filed. In charging 
the jury the trial court, among other 
tilings, said: 
The Question Stated. 
The question in issue is, whether this is 
attributed to the neglect of Dr. Winslow 
(the defendant). The defendant is not an- 
swerable unless two things appear: First, 
that he was guilty of negligence or want of 
skill in administering the chloroform; and, 
second, that the disease which followed was 
the result of the use of this remedy. 146 
LAW FOR THE DENTIST. 
The court then in reviewing the evi- 
dence observed: That the medical ex- 
perts testified that chloroform was a 
proper agent sanctioned by science and 
experience. This expert testimony also 
tended to show that paralysis was not a 
natural or even possible consequence of 
the giving of chloroform. And the evi- 
dence showed that the defendant was 
skilful iii his profession and especially 
conversant with the administration of 
chloroform, being frequently called upon 
by eminent surgeons to give it for them. 
Then in closing its charge the court said: 
If tlie plaintiff was, from previous circum- 
stances, predisposed to paralysis, it might 
well happen that the extraction of his teeth 
without the chloroform, or the use of chloro- 
form without the extraction, would bring on 
a paralytic attack. 
Even if this was the case still it would not 
he just to make the defendant answerable 
for consequences which he could not foresee, 
which were not the ordinary or possible re- 
sult of what he did. 
He was only hound to look to what was 
natural and probable, to what might reason- 
ably be anticipated. There is nothing to 
show that he was made acquainted with the 
accident that had befallen the plaintiff, or 
had any reason to suppose that there was LAW FOR THE DENTIST. 
147 
greater danger in his case than that of other 
men. Unless such guard is thrown around 
the physician, his judgment may be clouded 
or his confidence shaken by the dread of 
responsibility at those critical moments when 
it is all-important that he should retain the 
free and undisturbed enjoyment of his 
faculties, in order to use them for the benefit 
of the patient. 
The trial resulted in a verdict for the 
defendant. 
So it may be said in summing up: 
That in administering an anesthetic the 
dentist is hound to exercise the highest 
degree of care, both in his determination 
to use it and in its use. And an injury 
resulting from his negligence in situa- 
tions of this kind may make him liable 
in malpractice, and if death should re- 
sult he might he charged with man- 
slaughter. 
On the other hand, the dentist is only 
required to look to the natural and prob- 
able effects of the administration of an 
anesthetic upon his patient. 
Summary. CHAPTER XVI. 
Judicial Construction of Libel and 
Slander of Dentist in His Profes- 
sional Capacity. 
Broadly speaking, any false defama- 
tory words, written and published, con- 
stitute libel, and if spoken constitute 
slander; and perhaps no branch of the 
law has been more fruitful of long, bitter, 
drawn-out litigation than that section 
devoted to this subject. For as cases of 
this kind have usually been based upon 
a keen sense of outraged honor, they have 
for the most part been prosecuted with 
vigor and persistence to the last ditch. 
Of the reported cases of this class 
quite a number have concerned phy- 
sicians and surgeons, but a careful search 
lias disclosed but few instances where 
dentists have been active parties. How- 
ever, as the principles involved are 
equally applicable to dental practitioners, 
a brief sketching of cases in which the 
words used were held actionable, when 
applied to physicians and surgeons, may 
be of value. For example: 
148 LAW FOR THE DENTIST. 
149 
Where it was said of a surgeon: “He 
is no good, only a butcher. I would not 
have him for a dog;” these words were 
held to constitute slander per se. And 
where it was said of a physician: “He 
has killed the child by giving it too 
much calomel/’ the words were held ac- 
tionable. So too under certain circum- 
stances the charging of a physician and 
surgeon with being a “quack” lias been 
held to amount to grounds for an ac- 
tion for damages. In fact, generally 
speaking, any charge against a physician 
of unprofessional conduct in the treat- 
ment of his patients is actionable. 
However, it should be noted that each 
case of this kind must necessarily be de- 
cided in tbe light of the particular facts 
involved, which makes the statement of 
a hard and fast rule difficult. But, 
nevertheless, any publication which tends 
to degrade, injure or bring a person into 
contempt or ridicule, or which accuses 
him of a crime, or other disgraceful act, 
is libel. As an illustration of the appli- 
cation of this rule of law Cady vs. Brook- 
lyn Union Pub. Co., 51 1ST. Y. 198 is of 
interest. Tbe facts which culminated in 
the action were, in the main, as follows: 150 
LAW FOR THE DENTIST. 
Publication Announced Suicide of 
Dentist. 
The plaintiff in this action was a prac- 
ticing dentist in the city of Brooklyn, 
N. Y. The defendant published in its 
newspaper a statement to the effect that 
the plaintiff had committed suicide in 
Baltimore, Md., by shooting himself. 
Thereafter the plaintiff brought an ac- 
tion for damages against the defendant 
on account of this publication, and was 
awarded a verdict in the lower court. 
The defendant prosecuted an appeal 
on the ground that the words published 
were not libelous per se, and as no spe- 
cial damages bad been claimed, no cause 
of action was alleged. It was further 
Contended by the defendant that, as no 
malice was shown, the plaintiff was not 
entitled to recover. In answering these 
contentions, in the order in which they 
have been stated, the higher court, in 
reviewing the case, among other things, 
said: 
The trial proceeded mainly on the ‘theory 
that the published words were libelous per se 
as touching the plaintiff in his profession, 
for to publish of him that he had committed 
suicide was at least as injurious to him in LAW FOR THE DENTIST. 
151 
his profession as would be a publication that 
he had suddenly abandoned his home and 
practice and gone to parts unknown, and that 
would he libelous. But I think they were 
also libelous per se without regard to his 
profession. . . . 
From early times the rule is of familiar 
statement, that not only do oral words which 
amount to slander per se constitute libel 
per se if written, but that in addition any 
written words soever which hold one up to 
disgrace, hatred, ridicule or contempt, are 
libelous per se, however-much they may fall 
short of charging a criminal offense, or of 
amounting in any other respect to slander 
if only spoken. . . . 
The court next directed its attention 
to the second contention of the defen- 
dant, i.e., that as no malice was shown 
in the publication it was not actionable. 
In reply to this it was, in part, said : 
But malice in the defendant is not, and 
never was, an essential ingredient in an ac- 
tion for damages for an ordinary libel or 
slander. It is only necessary where the 
occasion of the speaking or publishing of 
the defamatory words was qualifiedly priv- 
ileged. There malice in the defendant has 
to be shown, and is a necessary ingredient 
of the cause of action, in order to defeat the 
privilege. The common saying that malice 
is essential to maintain all civil actions for 152 
LAW FOR THE DENTIST. 
slander or libel is an inadvertence, and no 
judge or writer who has considered it has 
accepted it, It is folly, for no matter how 
good one’s motives may have been in speak- 
ing or publishing unprivileged defamatory 
matter, that constitutes no defense to an ac- 
tion for damages therefor. No verdict for 
the defendant to an action for ordinary libel 
or slander could stand upon a charge by the 
trial judge to the jury, that if they found no 
malice in the defendant the verdict must be 
for the defendant. . . . 
Then, after further consideration of 
the question before it, the court in con- 
clusion said: 
Publication Held Libelous. 
I think the effect of the publication con- 
cerning this plaintiff must have been to sub- 
ject him to general ridicule, which in legal 
presumption causes damages, and that makes 
it libelous per se. Everybody would say of 
him, “There goes the dentist who committed 
suicide.” His profession, or craft, was prop- 
erly considered on the question of how much 
actual damage must have been caused to him 
by the publication. 
The court thereupon denied the mo- 
tion of the defendant to set aside the 
verdict rendered in the lower court in 
favor of the plaintiff. Holding that the LAW FOR THE DENTIST. 
153 
publication, as outlined heretofore, was 
libelous per se, and gave the injured 
dentist a right to recover. 
The foregoing opinion is fairly illus- 
trative of the reasoning of the courts in 
construing alleged libelous publications, 
and as noted heretofore, broadly speak- 
ing, any false publication which tends to 
degrade, injure or bring a person into 
ridicule, or which accuses him of a crime 
or other disgraceful act, is libel. How- 
ever, in this connection it may be noted 
that before one can successfully claim 
damages for libel he must positively con- 
nect himself with the alleged libelous 
publication, and this connection must be 
made from the alleged libel and cannot 
be supplied by innuendo by the ag- 
grieved person. This point is illustrated 
in a striking manner in Gunning vs. Ap- 
pleton, 58 How. Pr. 471, under the fol- 
lowing facts. 
The plaintiff was a practicing dental 
surgeon and treated William H. Seward 
for a fracture to his lower jaw. This 
treatment by the plaintiff of William H. 
Seward, along with the success of the 
treatment, it seems, attracted wide at- 
tention at the time. Thereafter the de- 154 
LAW FOR THE DENTIST. 
fendants, who were publishers, published 
in their journal, the New York Medical 
Journal, the following item touching on 
this occurrence: 
The late William H. Seward, when travel- 
ing around the world, and when in Yoko- 
hama, Japan, required the services of a den- 
tist. Upon examination it was found that 
the inferior maxilla was comparatively use- 
less for masticating purposes, there being a 
false joint at the seat of the original frac- 
ture, no union having taken place. 
This case will be remembered from the 
worldwide notoriety of the circumstances at- 
tending the injury, as well as the reports, 
which have been universally believed, that 
the patient was benefited by the treatment 
he received for the cure of his fracture. 
Dental Surgeon Brought Action for 
Alleged Libel. 
Following the foregoing publication 
the plaintiff brought the instant action 
against the defendants for $25,000 dam- 
ages for alleged libel. The plaintiff in 
his complaint set forth the alleged libel, 
as above, then he further alleged, by way 
of innuendo, as follows: 
The said late Wm. II. Seward suffered dur- 
ing liis life an injury to his lower jaw, 
whereby the same was fractured, and said LAW FOR THE DENTIST. 
155 
fracture was treated for tlie cure thereof by 
this plaintiff, and this plaintiff had sole 
charge and care, professionally, of such treat- 
ment. The result of said treatment was that 
the said lower jaw was so restored as to he 
used efficiently by the patient, and the said 
treatment by this plaintiff resulted in a suc- 
cessful cure of said fracture, and both in and 
out of this plaintiff’s profession the result 
of the said treatment has enhanced this 
plaintiff’s reputation and standing as a den- 
tal surgeon. 
The said treatment and cure have received 
great attention both in this country and else- 
where, and this plaintiff has publicly and 
privately reported that the said William H. 
Seward -was benefited by the treatment he re- 
ceived for the cure of said fracture, which 
treatment was under the sole professional 
charge of this plaintiff. 
That the reports of said treatment and 
cure, referred to in the publication above set 
forth, were prepared and disseminated by this 
plaintiff, and at the time of said publication, 
the said defendants knew that said reports 
were so prepared and disseminated by this 
plaintiff. 
That the said defendants, in and by said 
publication, charged and intended to charge 
this plaintiff with falsely and fraudulently 
claiming and reporting that the said Seward 
was benefited by the treatment he received 
from this plaintiff as a dental surgeon, for 
the cure of the said fractures. 
The said publication was false and de 156 
LAW FOR THE DENTIST. 
famatory, and calculated to, and did, seri- 
ously injure this plaintiff in his reputation, 
good name and credit, and by reason thereof 
this plaintiff’s practice as a dental surgeon 
is seriously impaired, and his professional 
reputation, good name and credit are ma- 
terially injured. . . . 
To the foregoing complaint the defen- 
dants filed a general demurrer, which 
was sustained, and the case went up on 
the pleadings. In passing upon the issue 
raised the higher court, among other 
things, said: 
What the Court Decided. 
In my judgment the language upon which 
this action is founded is not defamatory on 
its face. It assumes to give an account of a 
circumstance in which many others besides 
plaintiff may be presumed to have had an 
interest. He is not therein referred to per- 
sonally or as one of a class. A fair criticism 
of the alleged libel would convey the idea 
that Mr. Seward, when at Yokohama, was 
examined by a dentist who discovered that 
the fracture Mr. Seward had sustained was 
not then cured. It was not alleged that no 
subsequent cure was effected, or that he was 
under treatment by plaintiff prior to the ex- 
amination had at Yokohama. 
All that can be claimed, as against the de- 
fendants, is that they published as a fact 
that which the examination disclosed, LAW FOR THE DENTIST. 
157 
namely, that the “reports which have been 
universally believed that the patient was 
benefited by the treatment he received for 
the cure of his fracture” were erroneous. . . . 
After a careful consideration of the whole 
scope and object of the publication, which 
were germane to the legitimate purposes of a 
medical journal, I am of opinion that no 
malice is presumable from the publication 
in question, and that no right of action has 
accrued to plaintiff therefrom. 
The court thereupon affirmed the judg- 
ment of the lower court. Holding that 
the publication complained of was not 
libelous, and that the plaintiff could not 
maintain his action. So, to sum up: 
Generally speaking, words which tend 
to injure or bring a dentist into ridicule 
and contempt, or which accuse him of 
crime or other disgraceful act, or charge 
him with unprofessional conduct in the 
treatment of his patient, constitute libel 
if written and published, and slander if 
spoken. However, as previously noted, 
whether a given case of alleged libel or 
slander may be brought within this rule 
will of course depend in a great measure 
upon the particular facts involved, which 
precludes the statement of a hard and 
fast rule applicable in all cases. CHAPTER XVII. 
Limitations Upon the Practice of 
Dentistry in Respect to Overlap- 
ping into the Field of Medicine or 
General Surgery. 
The question of the limitations upon 
the practice of dentistry in respect to 
overlapping into the field of medicine or 
general surgery, appears to be one of 
interest to dentists in general. Es- 
pecially does this seem true in cases 
where a dental practitioner is perhaps 
specializing in oral surgery, for example, 
and does not hold an M.D. degree in ad- 
dition to his D.D.S. 
But a careful search of the books dis- 
closes little authority directly upon the 
point in question, and the writer has not 
found even one ease which contains any- 
thing like an exhaustive discussion of 
this feature of dental jurisprudence. 
However, in re Carpenter, 196 Mich. 561, 
a certain phase of the question was up 
for decision, which entailed a considera- 
158 LAW FOR THE DENTIST. 
159 
tion of whether or not certain acts per- 
formed by a dentist would amount to 
the practice of medicine. So, while the 
decision did not require the announce- 
ment of any broad rules on limitations 
of the practice of dentistry in respect 
to overlapping into medicine or general 
surgery, it did hold that the acts set 
forth did not amount to such an over- 
lapping, and in view of the paucity of 
authority upon the subject its holding 
becomes one of considerable interest and 
value. 
Dentist Treats Cancer of the Mouth. 
Ill this case the claimant was a duly 
licensed and practicing dentist. The 
decedent, it appears, had suffered for 
some months from an incurable cancer 
of the mouth. The claimant treated the 
decedent up until the time of her death, 
and thereafter filed a claim for services 
rendered against the estate of the de- 
cedent. The nature of the services ren- 
dered are clearly shown by the bill of 
particulars, which greatly abbreviated 
was as follows: 160 
LAW FOR THE DENTIST. 
To treating and cleansing cancer of 
the mouth three times a day—77 
days, at $2.00 per day $154.00 
To treating and cleansing cancer four 
to six times a day—64 days, at 
$3.00 per day 192.00 
April 14, 1915. Cocain and anti- 
septic 4.00 
June 1, 1915. Cocain and anti- 
septic 4.00 
June 23, 1915. Cocain and anti- 
septic 4.00 
$358.00 
Certain payments had been made upon 
the bill, which reduced it to the sum of 
$138.00 at the time it was filed against 
the estate. Upon the trial of the cause 
the evidence showed that the decedent 
had been attended by Dr. Huntington, a 
regular practicing physician and sur- 
geon, and that Dr. Huntington knew 
that claimant was caring for the cancer; 
that he had in fact instructed claimant 
to “administer antiseptic and anesthetic 
drugs.” 
Upon the conclusion of the claimant’s 
case counsel for the estate asked for a 
directed verdict. This request was made 
upon the grounds, among other things, LAW FOR THE DENTIST. 
161 
“that the services rendered by claimant 
were rendered for the treatment of a 
cancer by a man not shown to be legally 
qualified to practice medicine in the 
State of Michigan; that a treatment of 
cancer by a dentist is a treatment in vio- 
lation of the law.” 
The court denied the motion for a 
directed verdict and submitted the case 
to a jury. The latter returned a verdict 
for the full amount claimed to be due, 
and the estate prosecuted the instant ap- 
peal from judgment thereon. In stating 
the principal question before it the 
higher court said: 
The only question of importance involved 
in this case is whether the claimant in doing 
what he did for the decedent was engaged in 
the practice of medicine contrary to the pro- 
visions of Act 237 of the Public Acts of 1899, 
as amended. 
After the foregoing statement of the 
point up for decision the court addressed 
its attention to a consideration of the 
record in connection with the statutory 
enactments which controlled the situa- 
tion. In this connection it was, in part, 
said: 162 
LAW FOR THE DENTIST. 
Held Proper Treatment Within Dental 
Practice Act. 
The record shows beyond question that the 
treatments administered by the claimant 
were so administered from the very first 
under the direction of a duly qualified phy- 
sician, ... It further shows that such 
treatments were necessarily administered 
from three to six times each day; the lesion 
in the jaw being extremely painful and emit- 
ting a discharge highly offensive in odor. 
It further appears that in the administering 
of said treatments some skill was required. 
We are of opinion that claimant was entitled 
to recover upon either of two theories: 
First, that the services rendered were those 
of an ordinary nurse under the direction of 
a competent and duly qualified surgeon; and, 
second, that they were rendered by claimant 
as a duly qualified dentist under the pro- 
visions of Act 183, P. A. 1913, section 7 of 
which provides: 
“Any person shall be said to be practicing 
dentistry within the meaning of this act 
. . . who shall . . . treat diseases or 
lesions of the human teeth or jaws, . . . 
or who shall, for a fee, salary, or other 
award paid or to be paid, . . . treat dis- 
eases or lesions of the human teeth or jaws.” 
The treatments administered by the claim- 
ant would clearly fall within the definition of 
the practice of dentistry contained in the 
statute. We are of opinion that claimant in 
rendering the services for which claim is LAW FOR THE DENTIST. 
163 
made was not practicing medicine within the 
meaning of Act 237, P. A. 1899, nor of Act 
No. 368, P. A. 1913. . . . 
In conclusion the court affirmed the 
judgment rendered below in favor of the 
claimant. Holding, as outlined in the 
opinion, that the treatments given by 
the claimant were clearly such as he was 
authorized to give as a duly licensed and 
qualified dentist. 
As noted heretofore there appears to 
be very little judicial authority upon the 
subject under discussion, and while the 
foregoing Michigan case was decided in 
the light of the provisions of the statutes 
of that State, its holding can hardly 
fail to be of interest to the dental pro- 
fession generally. It furnishes a guide 
post, at least in a measure, upon what 
otherwise appears to be a road almost 
without sign or marking in respect to 
judicial definitions upon its boundaries. CHAPTER XVIII. 
Judicial Construction of Evidence 
Relative to Degree of Care Exer- 
cised in the Practice of Dentistry. 
Broadly speaking the law requires 
that a dentist, in the practice of his pro- 
fession, use the ordinary care used by 
other practitioners of ordinary skill in 
his locality. It follows that, in a given 
case, the question of whether or not the 
dentist has satisfied the requirements of 
the law will usually be a question of fact 
depending upon all the facts and cir- 
cumstances surrounding the particular 
case. 
For this reason care is a relative term 
and cannot be covered by the statement 
of a hard-and-fast rule. And, in view 
of this, it seems probable that the legal 
requirements in the matter of care, may 
be best illustrated by the examination of 
actual cases in which the courts passed 
upon evidence in situations of this kind. 
With this in mind a case of each class 
will be taken, i.e., one in which the evi- 
164 LAW FOR THE DENTIST. 
165 
dence submitted was held insufficient to 
show lack of the required care', and one 
in which the proof offered was held suf- 
ficient. As an example of the first 
named class of cases Robbins vs. Nathan, 
179 N. Y. S. 281, will serve. 
In this case the plaintiff went to the 
office of the defendant and told the lat- 
ter that one of her teeth was “bothering 
her.” The defendant examined the of- 
fending tooth, which was crowned with 
an artificial crown supported by the 
natural crown, and removing the crown 
ascertained that the tooth was not 
filled. Defendant then made a radio- 
gram from which he found that the 
root contained decomposing organic, 
matter. The defendant thereupon ad- 
vised the plaintiff that the tooth should 
be extracted. 
The plaintiff agreed to this and re- 
quested that gas be administered. Great 
difficulty was experienced by the defend- 
ant in bringing about complete un- 
consciousness in the patient, but finally 
with the aid of a trained nurse, who was 
in the employ of the defendant, and the 
plaintiff’s husband, who it seems arrived 
at the office at this time, the defendant 166 
LAW FOR THE DENTIST. 
succeeded in administering sufficient gas, 
and the tooth was extracted. 
Thereafter the plaintiff brought the 
instant action against the defendant for 
damages. In support of this, to para- 
phrase, the plaintiff, among other things, 
claimed that in removing the tooth it 
was broken; that the defendant made 
repeated efforts to extract the root; that 
in the course of these efforts the de- 
fendant administered cocain, breaking 
the needle of the instrument used; that 
the broken needle was removed from 
her gum with forceps. 
That following the operation she 
fainted; that thereafter her mouth was 
very sore, and that pieces of bone and 
flesh were subsequently cut away by an- 
other dentist to whom she applied for 
treatment. That she was thereafter 
treated by this latter dentist, also by a 
physician, and spent some time in a 
sanitarium. 
Upon the trial of the cause in the 
lower court the plaintiff recovered a 
verdict against the defendant for al- 
leged malpractice. The defendant car- 
ried the case up on appeal and in review- 
ing the evidence, and deciding as to its LAW FOR THE DENTIST. 
167 
sufficiency to place liability upon the de- 
fendant, the higher court, among other 
things, said: 
It seems to me that this case necessarily 
involves a holding that if a person has a 
tooth extracted, and thereafter his mouth is 
sore or he is ill, the dentist is responsible. 
This is not the law. The court correctly 
charged the jury: 
“The defendant was not a guarantor of his 
work, or the result that would follow; he is 
not an insurer as to the result. In other 
words, in this case, he was required to use 
the ordinary care of such a man having the 
ordinary skill in this locality; and, if he 
does not, the mere fact that there is a bad 
result is not enough, but you have got to 
trace it to his lack of skill, or his negli- 
gence.” . . . 
Applying that rule, what facts are there 
upon which to base a finding of the de- 
fendant’s liability? The defendant ex- 
tracted the plaintiff’s tooth, but there is not 
a hint or claim that it was not necessary. 
He administered gas, and had some difficulty 
in doing so. The plaintiff desired it, and 
there is no proof that it was improper to do 
so, that too much was administered, or that 
it could have been done by any other method. 
Her mouth bled, but this is usual, ordinary, 
and unavoidable. The cavity looked large 
to the plaintiff. Again this was the usual 
Dentist Held Not Liable. 168 
LAW FOR THE DENTIST. 
and ordinary result. No one else having 
special knowledge upon the subject confirmed 
her opinion. She had difficulty in talking. 
Two teeth had been removed—one natural 
tooth and an artificial tooth attached to it. 
This difficulty was disagreeable, natural, and 
temporary. . . . 
Plaintiff claims her lips were cut and 
bleeding. When plaintiff struggled, so that 
even with the help of a nurse defendant was 
unable to administer gas, and was only able 
to do so with the added assistance of plain- 
tiff’s husband, this result can not be at- 
tributed to any lack of skill or negligence 
upon the part of the defendant. These are 
all of the immediate physical effects of the 
operation. It is true that the plaintiff was 
ill afterwards, and that illness may have 
been attributable to the extraction of this 
tooth, but that does not warrant holding the 
defendant liable, as he does not, under the 
law, guarantee the result. . . . 
If the treatment of the defendant was un- 
skilful or negligent, it was incumbent upon 
the plaintiff to show it by those qualified to 
testify to the proper method of performing 
such an operation; and if the untoward re- 
sults present here might have been avoided 
by due care, the duty of showing that was 
also on the plaintiff. . . . 
I am not unmindful of the fact that in 
some cases the lack of skill or want of care 
is so obvious that expert testimony is un- 
necessary. . . . This, however, is not such a 
case, and the counsel for the respondent in LAW FOR THE DENTIST. 
169 
his brief fails to point out anything which 
the defendant did or omitted to do that in- 
dicated absence of skill or lack of care. He 
merely refers to results, and claims from 
these a want of care may be inferred. But 
these, as previously stated, are not of such 
a character as to warrant that inference 
without the aid of medical testimony. . . . 
In conclusion the court reversed the 
judgment rendered below in favor of the 
plaintiff, and dismissed the complaint 
with costs, holding the evidence of 
record to be insufficient to cast any lia- 
bility upon the defendant. 
The Other Side of the Question. 
This then brings us to a consideration 
of a case of the second class heretofore 
mentioned, i.e., those in which the evi- 
dence introduced was held to be sufficient 
to support a judgment. For this pur- 
pose Kenpher vs. McKenney, Dentists, 
et al., a Nebraska case reported in 185 
N. W. 412, will serve. The facts which 
culminated in the action were, briefly 
stated, as follows: 
The plaintiff had a small cavity in 
one of his lower molars and went to the 
offices of the defendants for treatment. 170 
LAW FOR THE DENTIST. 
Dr. Paige, an employee of the defend- 
ants, and also a defendant in the action 
that hereafter followed, examined the 
plaintiff, and advised that the molar be 
filled, also that another molar adjacent 
to it he filled as it too showed signs of 
decay. 
Dr. Paige thereupon filled the teeth 
and shortly thereafter the plaintiff com- 
plained of pain. The doctor, it ap- 
pears, informed him that many people 
did not lose the feeling from the effect 
of a filling for several hours. Two days 
later plaintiff returned to Dr. Paige 
complaining about the pain, and called 
the doctor’s attention to a swelling in 
his face. 
Dr. Paige thereupon put some medi- 
cine around the teeth and gum, and a 
few days later plaintiff again returned, 
suffering with pain and with his face 
swollen more than before. Another doc- 
tor examined plaintiff’s teeth and re- 
ported to Dr. Paige that an abscess had 
started. Dr. Paige attempted to drill 
the filling out, but plaintiff was unable 
to stand the drilling at that time. 
Thereafter, it seems, another doctor in 
the employ of the defendants took LAW FOR THE DENTIST. 
171 
charge of tiie plaintiff’s case. The latter 
cut an opening into the tooth and treated 
it, and after a second examination he 
advised plaintiff to have the tooth ex- 
tracted. 
Plaintiff was thereupon sent to Dr. 
Houston, a specialist, who, it appears, 
first radiographed the teeth, then ex- 
tracted one. Several da'ys later it be- 
came necessary to remove the other tooth 
and Dr. Houston also extracted it. 
Thereafter the instant suit for dam- 
ages was filed against the defendants. 
The x-ray picture of the two teeth, as 
well as the teeth, were placed in the 
record at the time of the trial. The 
trial resulted in a verdict in favor of the 
plaintiff for $500. The defendants 
prosecuted an appeal to the higher court 
where in reviewing the record, and 
weighing the evidence, it was, in part, 
said: 
What the Court Decided. 
Plaintiff's own testimony as to his suf- 
fering and sleepless nights is, of course, un- 
contradicted. But there is a conflict in the 
testimony of the doctors when it comes to 
reading the x-ray picture. Ur. Harry Foster 
testified that the picture shows in the second 172 
LAW FOR THE DENTIST. 
molar the filling touching on the prongs in 
the pulp; that in the third molar it does not 
touch the pulp. Other doctors called ex- 
press their doubt or deny that it touches at 
all. 
The testimony shows that the tooth pulp 
is very sensitive and is full of nerve tissue, 
and that a filling set on the pulp would 
cause severe pain, and, if not sterilized or 
the canals filled with sterilizing material, an 
abscess would result. Dr. Harry Foster 
testified that there should be between the 
filling and the pulp, a non-conductor; that 
gutta-percha was sometimes used to cap the 
pulp, and that there appeared to be nothing 
between the pulp and the silver amalgam 
in the tooth in question. As a matter of 
fact, Dr. Paige admitted that he did not cap 
the pulp. 
We think that the jury were justified in 
believing the witnesses for the plaintiff, and 
their verdict on conflicting evidence should 
not be disturbed unless clearly wrong. . . . 
In conclusion, after passing upon 
other matter not material to this dis- 
cussion, the court affirmed the judgment 
rendered in the lower court in favor of 
the plaintiff. Holding, as outlined in 
the opinion, that, while conflicting, 
there was sufficient evidence upon which 
to base a judgment for damages against 
the defendants. LAW FOR THE DENTIST. 
173 
Summary. 
The foregoing cases are fair examples 
of judicial reasoning in weighing evi- 
dence in situations of this kind. In the 
first case it will be noted that the plain- 
tiff, it appears, failed completely in her 
proof of negligence that could be 
ascribed to the defendant. The claims 
and proof appear to have solely con- 
cerned the result of the extracting of 
her tooth. So, while the jury gave her 
a verdict, the higher court refused to let 
it stand on the evidence of record. 
In the second case, however, we have 
a quite different situation. Here the 
plaintiff makes a charge of negligence 
and offers expert testimony in support 
of his allegations. True the testimony 
of his witnesses was, it appears, disputed 
by those of the defendants, yet the offer- 
ing of this testimony by the plaintiff 
placed the matter in the hands of the 
jury, and was such that the higher court 
declined to interfere with the verdict. 
Taken together the two foregoing hold- 
ings form a reasonably clear example of 
how, generally speaking, the courts 
weigh and construe evidence of mal- 
practice suits which involves the ques- 
tion of care and negligence. C H APTER XIX. 
Judicial Construction of Insurance 
Policy Indemnifying Dentist 
Against Damage Suits Based on 
Alleged Malpractice. 
The dentist, in the practice of his 
profession, can hardly expect to escape 
entirely the danger of at some time be- 
ing called upon to defend an action for 
alleged malpractice. This danger in re- 
spect to dentists is perhaps not so great 
as it is with physicians, but nevertheless, 
by the nature of the calling, it is ever 
present in some degree, and insurance 
against it has its advantages. 
However, if the dentist decides to 
carry insurance of this kind he should 
not lose sight of the fact that, if the pro- 
tection sought is to be attained, the terms 
of such a policy should be complied with. 
This is true, because such a policy is hut 
a contract and, unless the dentist brings 
himself within its terms and conditions, 
the insurance company may be able to 
defeat its liability under it. 
174 LAW FOR THE DENTIST. 
175 
The importance of a strict compliance 
with the terms, stipulations and condi- 
tions of insurance policies of this kind 
is illustrated in an interesting and in- 
structive manner in Betts vs. Massachu- 
setts Bonding and Insurance Company, 
90 1ST. J. L. 632. The report is some- 
what long and involved, but in so far as 
material to this paper the facts were, 
briefly stated, as follows: 
The plaintiff, Dr. Betts, a duly li- 
censed dentist, contracted with the de- 
fendant company whereby the latter 
agreed to protect him under certain 
terms and conditions against alleged 
malpractice suits. The contract also 
contained a paragraph protecting the 
plaintiff against such suits which might 
be based upon the acts of any assistant 
of the plaintiff. This paragraph pro- 
vided as follows: 
Material Terms of the Policy. 
The defendant company agreed to pro- 
tect him “against loss from the liability 
imposed by law upon the assured from 
damages on account of bodily injuries or 
death suffered by any person or persons 176 
LAW FOR THE DENTIST. 
in consequence of any alleged error or 
mistake or malpractice, by any assistant 
of the assured while acting under the 
assured’s instructions.” 
The policy also carried certain condi- 
tions, among them being condition “B,” 
which, to quote the language of the re- 
port, provided as follows: 
“The company shall not be liable un- 
der the policy for any claim against the 
assured or any assistant arising from 
the violation of any law or ordinance 
on the part of the assured.” 
Now it appears that Dr. Betts had in 
his employ as an assistant a dentist from 
another State, who was not licensed to 
practice in New Jersey. This dentist, 
Ur. Snively, performed a dental opera- 
tion upon one Klitch which led the lat- 
ter to bring a damage suit against Dr. 
Betts. Klitch recovered a judgment 
against Dr. Betts, the latter paid the 
judgment, and instituted the instant ac- 
tion against the defendant insurance 
company in an attempt to recover upon 
the policy outlined above. The insur- 
ance company defended the action, and 
among other things contended as fol- 
lows : LAW FOR THE DENTIST. 
177 
That the respondent [Dr. Betts] knew that 
Snively was not licensed and registered to 
practice dentistry in this State, and never- 
theless was employed and held out by respon- 
dent as his assistant in performing dental 
operations, which was in express violation 
of the dentistry act, which statute makes 
such conduct a misdemeanor, and therefore 
the respondent does not come into court 
with clean hands, and should not be per- 
mitted to make his unlawful act the basis 
of a right to recover; that in the application 
for the policy of insurance the respondent 
stated that he employed no physician, surgeon 
or dentist regularly on a salary or commis- 
sion except Dr. Charles L. Snively, and 
thereby he falsely represented that Snively 
was a licensed and registered dentist of this 
State, and that being so, he subjected the 
insurer to a risk which was not contemplated 
by it and which was concealed from the in- 
surer, and, therefore, the contract of insurer 
became void. . . . 
Upon the trial in the lower court Dr. 
Betts recovered a judgment against the 
insurance company. The latter carried 
the case up on appeal and in passing 
upon the issues before it the higher court, 
among other things, said : 
What the Court Decided. 
The appellant [the insurance company, de- 
fendant below] was entitled to rely on the 178 
LAW FOR THE DENTIST. 
safeguards which the law erected against 
improper and illegal practice of dentistry 
which tends to lead to error, mistake or 
malpractice. 
The record in Klitch vs. Betts supra [the 
case heretofore mentioned in which Dr. Betts 
was compelled to pay a judgment for the 
acts of his assistant Snively] establishes the 
uncontroverted fact that Snively, both un- 
licensed and unregistered to practice den- 
tistry, did, as an assistant to Dr. Betts, a 
licensed dentist, in the dental office, and in 
the absence of Dr. Betts, perform several 
dental operations upon Klitch and treated 
the latter’s injured jaw resulting from such 
operations. These acts were clearly in ex- 
press violation of the statute which forbids 
dental operations by an unlicensed person. 
The record also clearly shows that Betts em- 
ployed and permitted Snively to perform 
dental operations while he was an unlicensed 
person, which was a clear violation of the 
policy. 
Shively’s acts, being both unlawful and un- 
authorized, and not having occurred while 
acting under the assured’s instructions, by 
force of the provision of the insurance con- 
tract which limits the liability of the insur- 
ance company to injuries or death in conse- 
quence of any alleged error or mistake or 
malpractice, by an assistant of the assured 
while acting under the assured’s instructions, 
cannot, therefore, operate or create any lia- 
bility on part of the insurance company to 
indemnify the respondent. LAW FOR THE DENTIST. 
179 
Besides this conclusive bar to the respon- 
dent’s right to a recovery, condition “B” of 
the policy of insurance expressly provides 
that the insurance company shall not be 
liable under the policy for any claim against 
the assured or any assistant arising from 
the violation of any law or ordinance on the 
part of the assured. . . . 
We think also that the respondent is de- 
barred from recovering on the policy, be- 
cause it appears that the basis of his claim 
of recovery is the unlawful act of Snively in 
which the respondent participated by holding 
Snively out as a licensed dentist to the pub- 
lic and to the appellant. . . . 
Furthermore, it is to be observed that the 
statement made by the respondent in his ap- 
plication for insurance, that Dr. Snively was 
his assistant, was a material statement, since 
it related to the risk which the company was 
taking, and, besides, the respondent war- 
ranted the statement to be true when he knew 
that Snively was not authorized to practice 
dentistry in this State. This of itself is suf- 
ficient to avoid the appellant’s liability on 
tbe policy. . . . 
Conclusion. 
In conclusion the judgment rendered 
in the lower court in favor of the plain- 
tiff was reversed, holding, as outlined in 
the opinion, that for a number of reasons 
the plaintiff was not entitled to recover 
against the insurance company. 180 
LAW FOR THE DENTIST. 
The foregoing New Jersey case is the 
only case that the writer has discovered 
dealing with the construction of an in- 
surance policy of this kind which had 
been issued to a dentist. And while of 
course each case of this kind must neces- 
sarily be decided in the light of the par- 
ticular facts and the terms of the policy 
involved, yet this New Jersey holding 
adheres to the general rules usually ap- 
plied in construing policies of this kind. 
It follows, in the light of this de- 
cision, that a reasonable compliance with 
the terms and conditions of a policy of 
this kind is imperative if the insured is 
to reap the benefits of the contract. For, 
as illustrated in the foregoing case, any 
material breach of the terms, beginning 
with the application, where the state- 
ments therein are warranted, may defeat 
the liability of the insurance company 
under the policy. CHAPTER XX. 
Dissatisfaction of Patient with Den- 
tal Services Rendered as a Defense 
to Action for Payment. 
The dentist, in common with men and 
women of other professions, will in the 
practice of his calling come in contact 
with all kinds and conditions of people. 
It follows that his measure of success 
will depend, at least to a considerable 
extent, upon his ability to attract and 
hold a following. For, regardless of how 
efficient he may be in the actual per- 
formance of his professional duties, if he 
lacks tact and judgment in dealing with 
the peculiar whims and idiosyncrasies 
which he is bound to meet, he may fail 
to attain a measure of financial success 
commensurate with his professional 
ability. 
And while the great majority of peo- 
ple are without doubt reasonable in their 
demands and appreciate efficient and 
fair treatment, yet once in a while the 
dentist may expect to encounter an in- 
181 182 
LAW FOR THE DENTIST. 
dividual who is, to say the least, hard to 
please. If, then, such a person becomes 
dissatisfied with dental services rendered 
to such an extent as to refuse to pay, or 
perhaps to even permit the dentist to 
continue in his efforts to make the work 
satisfactory, the latter may have no 
choice save to lose the account or resort 
to law. 
If the dentist decides to resort to law 
in a situation of this kind, the question 
of the legal sufficiency of the patient’s 
dissatisfaction as a defense becomes one 
of considerable interest. And in this 
connection it may be stated broadly that 
dissatisfaction alone will not defeat a 
recovery by the dentist, providing the 
services were rendered in a workmanlike 
manner in accordance with the practice 
of other dentists in the same locality. 
In other words, a dissatisfied patient 
cannot rely merely upon his or her dis- 
satisfaction, but in addition must show 
some reasonable ground for such dis- 
satisfaction if payment for the services 
is to be defeated. And it seems that the 
best evidence of the reasonableness of 
the grounds for such dissatisfaction 
must come from witnesses who are quali- LAW FOR THE DENTIST. 
183 
fied to testify as to the standards and 
practices of the dental profession. This 
point of dental jurisprudence is illus- 
trated in an interesting manner in the 
recent case of Ilolsapple vs. Scofield, a 
Wisconsin decision, reported in 187 N. 
W. G82. 
Facts in the Case. 
In this ease the defendant, a lady of 
over seventy, employed the plaintiff, a 
practicing dentist, to extract six remain- 
ing teeth in her lower jaw, and to make 
a set of artificial teeth for the lower and 
upper jaws. The plaintiff extracted the 
teeth, and after taking the necessary im- 
pressions, had the two artificial dentures 
made. 
The dentures were tried in the de- 
fendant’s mouth, and after several read- 
justments the defendant expressed her 
dissatisfaction. Thereafter, after hav- 
ing worn or tried to wear the dentures 
in all about four days, the defendant 
returned the dentures, declined to try 
them further, and refused to pay a bal- 
ance due upon the account. The plain- 
tiff thereupon brought the instant suit 
to enforce payment. 184 
LAW FOR THE DENTIST. 
The action was commenced in a justice 
court and the plaintiff recovered a judg- 
ment. The defendant appealed to the 
circuit court where the case was tried 
before a jury and resulted in a judgment 
in favor of the defendant. The plaintiff 
thereupon carried the case to the Su- 
preme Court of Wisconsin. Here in re- 
viewing the evidence of the respective 
parties it was in part said: 
Plaintiff, in addition to his own testimony, 
called three dentists as experts, and the 
substance of their testimony was that after 
extraction of so many teeth there would be 
a shrinkage of the substance that surrounded 
the roots of the teeth, and that such process 
takes considerable time and is slower in 
those of advanced years; that until there is 
such final settlement there can be no imme- 
diate complete or perfect adjustment of an 
artificial set of teeth, and that changes are 
required from time to time until there is a 
final settlement of the process and often new 
plates are then required; that it requires 
considerable time for a person to adjust him- 
self to such a lower plate. . ; . The dentists 
testified that the materials and workmanship 
were good, and the articulation—that' is, 
the manner in which the teeth came to- 
gether in the mouth—was properly arranged, 
and that the price charged by plaintiff was 
reasonable. They also testified that, al- LAW FOR THE DENTIST. 
185 
though in this particular set the upper teeth 
projected over the lower set, such was 
normal, usual and proper. 
The defendant called no one who had any 
special or expert knowledge as to the nature 
of such work. The evidence offered on de- 
fendant’s behalf was to the effect that the 
teeth did not fit properly in the mouth, and 
that the upper jaw projected too far beyond 
the lower, and she herself testified that at 
the time she was trying to use the set the 
lower plate caused her great inconvenience, 
pain and soreness. 
After tlie foregoing review of the ma- 
terial parts of the evidence of the re- 
spective parties the court in stating the 
general rule relative to a recovery by the 
plaintiff used the following language: 
If the plaintiff performed the dental serv- 
ices for the defendant and did the same in a 
good workmanlike manner in accordance 
with the recognized and established practice 
of those in the same profession in his lo- 
cality, he became entitled to the reasonable 
value of his services. 
■ The court next directed its attention 
to an examination of the evidence rela- 
tive to whether or not it entitled the 
plaintiff to recover in accordance with 
General Rule of Recovery Stated. 186 
LAW FOR THE DENTIST. 
the rule announced above. In weighing 
the evidence upon which to base its con- 
clusion it was, among other things, said : 
We must hold in this case that the issue 
here presented was one upon which expert 
rather than lay evidence was necessary. . . . 
The testimony of those familiar with that 
kind of work and services was all one way 
and to the effect that it was in accordance 
with the recognized standard of skill in that 
locality. 
It is uncontradicted that a satisfactory re- 
sult could not in the nature of things be ex 
pected during the short time in which de- 
fendant attempted to try the teeth furnished 
by plaintiff, and she herself testifies that she 
refused to continue any further. . . . Neither 
court nor jury can use their own individual 
views nor those of persons unfamiliar with 
such particular subjects as proper basis for 
their findings as against the uncontradicted 
and unimpeached testimony of those who 
are qualified to know and speak on such 
subject. . . . 
It follows that the court should have set 
aside the verdict and have granted plain- 
tiff’s motion for the amount asked in the 
complaint. Judgment reversed, and cause 
remanded, with directions to render judg- 
ment for plaintiff. 
The foregoing Wisconsin decision is 
one of great clearness and value to the LAW FOR THE DENTIST. 
187 
dental profession, in the light of the 
facts and holding, it is clear that mere 
dissatisfaction of a patient with dental 
services will not of itself be sufficient to 
enable such a patient to defeat recovery 
by the dentist. In addition, if the pa- 
tient would win, it must also appear that 
the dissatisfaction was grounded upon 
some lapse of the dentist in performing 
the services, and proof of this kind must 
usually be weighed in the light of the 
qualifications of the witnesses offering it. CHAPTER XXI. 
Judicial Construction of Written 
Warranty of Dental Work 
Davis vs. Ball, 60 Mass. (6 Cush) 505, 
was a case decided in 1850 involving the 
construction of a written warranty of 
work given by a dentist. The decision 
is probably of limited practical value 
owing to the infrequency with which 
written warranties are indulged in by the 
dental profession; however, the rule of 
law announced is as true today as when 
stated. The case carries a worth-while 
lesson on the importance of care when 
entering into a written contract and, to 
the writer’s mind, it is also worthy of 
examination for the bit of dental history 
it reflects. The facts which culminated 
in the action were, briefly stated, as 
follows: 
The defendants were dentists and had 
performed certain work for the plain- 
tiff’s wife. When the work was paid for 
the defendants gave the wife of the 
188 LAW FOR THE DENTIST. 
189 
plaintiff a receipt and warranty which 
provided as follows: 
34 Tremont Row, Boston, 1847. Mrs. Davis 
to Drs. Ball & Co. Dr. Teeth filled, cleaned, 
inserted, extracted, and all operations in the 
best manner. To operations in dentistry, Aug. 
20: Inserting one upper set and part of 
lower set of teeth on gold plate, warranted 
for one year; and if on trial they cannot be 
made useful, the teeth to be returned and the 
money refunded when called. Received pay- 
ment, $110. 
A. Ball & Co. 
The plaintiff’s wife, it appears, tried 
the teeth and did not succeed in making 
them useful to herself. The teeth were 
thereupon returned within a year from 
the date of the above warranty and a re- 
fund of the money demanded. This was 
refused and the instant action was in- 
stituted in an attempt to recover same 
under the terms of the warranty. The 
defense, as outlined in the report, was in 
substance as follows: 
The defendants contended that there was a 
latent ambiguity in the words “made useful,” 
which would be suggested by the inquiry 
“made useful by whom? By the plaintiff’s 
wife, or by the subsequent adjustment of the 
defendants?” They thereupon contended, that 190 
LAW FOR THE DENTIST. 
parol evidence was admissible to explain the 
ambiguity, and for this purpose they offered 
evidence, first, to prove the undertaking and 
contemporaneous construction of the parties, 
by their conversation at the time; and, sec- 
ond, to prove the custom of the trade or pro- 
fession by other dentists. . . . 
This evidence was rejected by the trial 
court on the grounds that there was no 
latent ambiguity in the writing and that 
to admit parol evidence to vary its terms 
would violate the parol evidence rule. 
The trial court held that by the terms of 
the writing the teeth were to he made 
“useful” by the plaintiff's wife, and that 
if after a trial they were not capable of 
being “made useful” by her the money 
was to he refunded. The trial resulted 
in a judgment in favor of the plaintiff, 
the defendant appealed, and assigned 
this exclusion of the evidence offered as 
error. In passing upon this contention 
the higher court, in part, said: 
The writing is the best evidence of the con- 
tract ultimately concluded between the 
parties, upon which they intended to rely, and 
by which they intended to be bound. Then 
it was said, that the writing was a mere re- 
ceipt, which might be contradicted. But so 
far from being a mere receipt, it was, in LAW FOR THE DENTIST. 
191 
terms, a clear and express contract of war- 
ranty. . . . 
The evidence offered to explain a supposed 
ambiguity in the written contract was prop- 
erly excluded for the reason assigned by the 
judge at the trial. If there is any ambiguity, 
it must be a patent ambiguity. But there is 
really no ambiguity, latent or patent. The 
construction put upon the contract by the 
judge at the trial was very clearly and mani- 
festly correct. 
There is no ambiguity in the words “made 
useful” and no difficulty arises from the in- 
quiry “made useful by whom?” The answer 
to the inquiry is very obvious,—made useful 
by the person who was to try them and for 
whom they were designed. The teeth were 
made, completed, finished. Though ever so 
skilfully made, it was uncertain, as it neces- 
sarily must be from the nature of the case, 
whether the person for whose use they were 
designed would he able to use them. It was 
therefore agreed that if the plaintiff’s wife, 
upon trying them, should find she could not 
use them or make them useful, she might 
return them, and the money should be re- 
funded. ... 
The defendants’ exceptions were there- 
upon overruled. 
As noted in the beginning, the fore- 
going decision was decided in 1850, and 
it appears to he the only authority the 
hooks contain on the question involved. 192 
LAW FOR THE DENTIST. 
This perhaps would be sufficient reason 
to include it in a paper of this kind, but 
to the writer’s mind a better reason is 
found in its historical value, mirroring, 
as it does, certain phases of the status of 
dentistry as practiced in that day. CHAPTER XXII. 
Dentist as Medical Practitioner in 
Respect to Privileged Communica- 
tions Made by Patient. 
Statutes forbidding physicians and 
surgeons from disclosing information re- 
ceived from their patients in their pro- 
fessional character have been widely en- 
acted. And, while such statutes are 
obviously grounded upon a sound public 
policy, the courts in construing them 
have been inclined to stand squarely upon 
the letter of the law, and refrain from 
extending their operation by implication. 
In accord with the foregoing construc- 
tion such authority as the writer has 
been able to find has denied the applica- 
tion of statutes of this kind to practi- 
tioners of dentistry. It then appears 
that unless a statute specifically includes 
dentists, by the weight of authority, a 
dentist is not a surgeon or physician 
within tiie meaning of statutes making 
certain communications privileged when 
made to the latter. This point is illus- 
193 194 
LAW FOR THE DENTIST. 
trated in an interesting manner in 
People vs. lie France, 104 Mich. 563. 
In this case the defendant was being 
prosecuted for the alleged uttering of a 
forged draft. The case turned upon the 
question of identity, the defendant claim- 
ing that lie was not the person who ut- 
tered the draft. 
It appears that a man known as For- 
rest gave the draft and at the time his 
teeth presented a different appearance 
from those of the defendant at the time 
of the trial. The man Forrest’s two 
front incisors were separated distinctly 
while the defendant’s were not. In at- 
tempting to prove that the defendant 
was really the man Forrest the people 
called as a witness Charles H. Land, a 
dentist, who testified that between cer- 
tain dates he had inserted three false 
teeth in the place of the two incisors for 
the defendant. 
On appeal to the Michigan Supreme 
Court the question of whether or not 
Land’s testimony was properly received 
arose. The defendant contended that 
the testimony of Land, the dentist, 
amounted to disclosing a privileged com- 
munication, and should not have been LAW FOR THE DENTIST. 
195 
received. In support of this the Michi- 
gan statute was cited which provided as 
follows: 
No person duly authorized to practice 
physic or surgery shall be allowed to dis- 
close any information which he may have 
acquired in attending any patient in his pro- 
fessional character, and which information 
was necessary to enable him to prescribe for 
such patient as a physician, or to do any 
act for him as a surgeon. 
In passing upon the question raised 
the court, among other things, said: 
The question presented is whether this 
language includes a dentist. At common law, 
information gained by a physician or sur- 
geon while in attendance upon his patient 
was not privileged. The purpose of this 
statute was to throw around such disclosures 
as the patient is bound to make for the in- 
formation of his attending physician the 
cloak of secrecy, and the prime object of the 
act was to invite confidence in respect to ail- 
ments of a secret nature, and the spirit o'f 
the act would not include a case where the 
infirmity was apparent to every one on in- 
spection. 
In practice, however, the statute has not 
been so limited in construction, for the rea- 
son that the words of the act are broad 
enough to include any information necessary 
to enable the physician to prescribe or the 196 
LAW FOR THE DENTIST. 
surgeon to act. Nevertheless, the purpose of 
the act is to be considered in determining 
whether the dentist was intended to be in- 
cluded within its terms. Certainly the terms 
“dentist” and “surgeon” are not interchange- 
able, and if a dentist is to be held to be a 
surgeon, within the meaning of this act, it 
must be because his business as a dentist is 
a branch of surgery. 
It is apparent that the act relates to gen- 
eral practitioners, and to those whose busi- 
ness as a whole comes within the definition 
of “physician” or “surgeon.” A dentist is 
one whose profession it is to clean and ex- 
tract teeth, repair them when diseased, and 
replace them, when necessary, by artificial 
ones. . . . We think there was no error in 
admitting the testimony of this witness; that 
lie is not within the terms or the spirit of 
the act. . . . 
The foregoing case was decided in 
1895, and of course the court in its rea- 
soning had in mind the status and field 
of operation then occupied by the dental 
profession. The thought then occurs, 
that in view of the progress and expan- 
sion of dental science since that time, 
were the court deciding the question be- 
fore it at this time might not a different 
answer be expected ? CHAPTER XXIII. 
Dental Books as Being Within the 
Terms of Insurance Policy Insur- 
ing “Instruments, Appliances and 
Material Incidental to a Dental 
Office.” 
The question of whether or not a den- 
tal library is included within the mean- 
ing of the terms of a fire insurance 
policy, insuring the “instruments, appli- 
ances and material incidental to a dental 
office,” was passed upon in American 
Fire Insurance Co. vs. Bell, Tex. Civ. 
App. 11. And as this decision is prob- 
ably the only authority on the precise 
point to be found in the books it becomes 
one of considerable interest to the dental 
profession, and well worth the attention 
of a brief review. 
In this case the insured, a dentist, 
entered into a contract of insurance cov- 
ering the equipment of his office against 
loss by fire. The policy of insurance 
contained, among other things, the fol- 
lowing description of the property in- 
sured : 
197 198 
LAW FOR THE DENTIST. 
Office and sitting-room furniture, dental 
chairs, gas apparatus, vulcanizers, electric 
motors, screens, pictures, paintings and their 
frames, at not exceeding cost, ornaments, in- 
struments, appliances and material incidental 
to a dental office. . . . 
Thereafter the property insured was 
destroyed by fire and a dispute arose 
over the settlement under the terms of 
the policy. The matter reached the 
courts and in denying the claim of the 
dentist, that 350 dental books, which it 
was alleged had been damaged in the 
sum of $800, should be included in his 
loss by the terms of the policy, it was, 
in part, said: 
Dental books may be, and doubtless are, 
very necessary to the proper operation of den- 
tal offices, but they cannot be classed as furni- 
ture, chairs, gas apparatus, vulcanizers, elec- 
tric motors, screens, pictures, paintings, 
“instruments, appliances and material in- 
cidental to a dental office.” The word “ap- 
pliances” is very comprehensive in its mean- 
ing, but has never been so broadened and 
expanded as to comprehend books, and the 
close conjunction in which it is used with the 
word “material ' shows clearly that it has 
reference to mechanical appliances, in con- 
nection with which the word is generally 
used. . . . LAW FOR THE DENTIST. 
199 
In the light of the foregoing holding 
it is clear that where a dental library is 
sought to be included in a policy of in- 
surance insuring office equipment it 
should be specifically set out. If this is 
done there can be no dispute over this 
phase of the subject, in the event of a 
loss, and when the value of even a good 
working dental library is taken into con- 
sideration it would seem but prudent that 
it he protected along with the other of- 
fice equipment. CHAPTER XXIV. 
Legality of Contract by Dentist to 
Furnish Patient Dental Services 
for Life. 
A careful search of the American re- 
ports fails to disclose any direct authority 
upon the question of the legality of a 
contract by a dentist to furnish a patient 
dental services for life. Such a case 
involving a dental contract of this kind 
does not appear to have ever arisen in 
the American courts, though there is at 
least one well-considered medical case, 
on the point of which more anon. 
The point was, however, up for de- 
cision in the English case of Allen vs. 
Davis, 4 I)eG. & S. 133, and while the 
case turned on the question of fraud, the 
language used no doubt reflects the Eng- 
lish view on the legality of contracts of 
this kind. The facts and circumstances 
which culminated in the action were, in 
so far as material to this paper, as fol- 
lows : 
Upon the death of a Captain John 
200 LAW FOR THE DENTIST. 
201 
Simpson, a very old man, bis executors 
were made aware that Mr. Davis, a den- 
tist, asserted a claim against the cap- 
tain’s estate in the form of a bill of 
exchange for £262. 10s. Davis it appears 
turned the bill over to another medical 
man, Mr. Peplow, and the latter brought 
an action upon it, for the joint account 
of himself and Davis. In reply to this 
the executors of Captain Simpson 
brought the instant action which sought 
to compel the delivery up of the bill on 
the apparent theory that it had been ob- 
tained by fraud. 
Contract to Furnish Dental Services 
for Life Alleged, 
Peplow was non-suited at the trial, 
being unable to prove the captain’s sig- 
nature. Davis, however, defended the ac- 
tion, and bis explanation of bow lie 
obtained the bill, to use the language of 
the court, was as follows: 
The story is, that a very old man, Captain 
Simpson, having a room or a place in Green- 
wich Hospital, gave the bill, payable eight 
months after date, to the defendant Mr. 
Davis (a dentist), purporting to be, generally, 
for value received; and the bargain, as the 
dentist says, was that the dentist should, 202 
LAW FOR THE DENTIST. 
during Captain Simpson’s whole life, attend 
to his teeth, and supply him with new 
teeth. . . . 
Following the above statement of Mr. 
Davis’s explanation of how he received 
the bill, the court directed its attention 
to the circumstances surrounding the 
transaction in respect to whether there 
was evidence of fraud. In this connec- 
tion it was, among other things, said : 
The hill is for £262. 10s. The body of it is 
in the handwriting of the dentist, such part 
(if any) as is in the handwriting of the 
captain being the signature. Tt is said to 
have been given in the dentist’s house, with- 
out the presence of a third person. Captain 
Simpson died before the bill became due; 
and it does not appear that any one had 
ever heard of it before his death. It does not 
appear that the contract to attend to his 
teeth was put in writing, or that there is or 
was any evidence of it, except the memory of 
Captain Simpson or Mr. Davis. There is not 
only this strange state of circumstances, 
upon Mr. Davis’s own showing, but there is 
also (which is very suspicious) the conduct 
of Mr. Davis after Captain Simpson’s death, 
the inaccurate manner in which lie spoke and 
wrote upon the subject, and the circum- 
stances also, that, instead of bringing the 
action in his own name, he placed the bill in 
the hands of another medical man, Mr. Pep- LAW FOR THE DENTIST. 
203 
low, to whom he owed a balance of £14 or 
£20 to put it in suit, the action being brought 
on the joint account of the two. 
Dentist Denied Recovery on Alleged 
Contract. 
Now, in a case of imputed fraud, the plain- 
tiff is entitled to ask of the court, as a judge 
of fact, whether an inference of fraud—of 
gross fraud—arises from the case as Mr. 
Davis has himself stated it. And I think 
it quite impossible to ask any reasonable be- 
ing to draw any different inference from such 
materials. The case has points of resem- 
blance to the remarkable case of Dent vs. 
Bennett, in which a medical man in the 
north of Lincolnshire bargained for a very 
large sum of money to attend a person of 
advanced years. . . . And I am of opinion, 
that, . . . Dent vs. Bennett, ... is a prece- 
dent .... for the exercise of the jurisdiction 
of the court in the present instance, though I 
do not ground my decision upon it. . . . 
In conclusion the court made a decree 
ordering the bill to be given up. In 
other words bolding that Mr. Davis, the 
dentist, was not entitled to enforce the 
claim, on the grounds, as has been out- 
lined, that the transaction was so tainted 
with fraud as to render it unenforceable. 
It will be observed that the foregoing 
case does not squarely pass upon the sub-  LAW FOR THE DENTIST. 
204 
ject of the legality of a contract to supply 
dental services for life, as it turned ujfon 
the element of fraud. However, when 
the case is considered in conjunction 
with Dent vs. Bennett, 7 Sim. 539, the 
medical case cited by the court above, 
there can be little doubt but that the 
contract would have been declared void 
even had it not been tainted with fraud. 
The last-named case, Dent vs. Bennett, 
seems to reflect the weight of English 
authority upon the question under dis- 
cussion, and a brief review of its hold- 
ing seems worth while. The facts of the 
case briefly stated were as follows: 
A physician in England contracted 
with a patient, a very old person, to 
render the latter medical services for life 
in consideration of the sum of £25,000, 
same to be paid upon the death of the 
patient. In denying the legality of this 
contract the court, in part, said: 
It is plain that the existence of such an 
agreement is a direct premium to the medi- 
cal adviser to accelerate that death upon the 
happening of which he is to have $25,000, 
and it is in vain to say that in fact it did 
happen that the party who was to give the 
£25,000 did live four or five years after the 
agreement. LAW FOR THE DENTIST. 
205 
You must look at the agreement as it stood 
at the time it was made; and it must be ad- 
mitted that the human mind is so constituted 
as that this agreement might be a temptation 
to some persons to do the very thing which 
it is obvious it was the duty of the party who 
took the agreement not to do; and my de- 
liberate opinion is that it is totally void in 
point of law for that reason. 
The American Rule. 
As noted in the beginning there does 
not appear to he any direct authority in 
the American reports upon the question 
of the legality of the contract of a den- 
tist to furnish a patient dental services 
for life. As previously noted, however, 
there is one very well-considered medical 
case, which upholds a contract of this 
kind, and appears of interest in connec- 
tion with this discussion. Reference is 
made to Zeigler vs. Illinois Trust & Sav- 
ings Bank Exr., 245 111. 180. 
In this case a doctor entered into a 
contract with one of his patients where- 
by he agreed to furnish her medical 
services for life in consideration of the 
payment of $100,000 out of her estate 
after her death. The patient was a very 
wealthy lady, seventy-eight or seventy- 206 
LAW FOR THE DENTIST. 
nine years old, and actively engaged in 
the management of her large property 
interests. 
The contract was openly entered into 
at the patient’s request and was not in 
any manner tainted with fraud. The 
doctor, on his part, attended his patient 
constantly during the period of the con- 
tract to the exclusion of his other pa- 
tients. Upon the death of the lady 
the executor of her estate opposed the 
payment of the contract. The case 
reached the Illinois Supreme Court 
where in upholding the contract it was, 
in part, said: 
It is urged that this contract is void chiefly 
for the reason that it furnishes an incentive 
to appellant [the doctor] to shorten the life 
of Mrs. McVicker by neglect, or improper 
treatment, or by the commission of the crime 
of murder. Each argument made by appellee 
[the executor] in support of this contention 
involves a breach of the contract, and is not 
founded upon the performance of it. 
It cannot be seriously contended but that, 
in order to comply with the terms of this con- 
tract and be entitled to receive the benefits of 
it, the appellant was bound to give Mrs. Mc- 
Vicker the best treatment within his power 
and skill, and to prolong her life as long as 
possible. There can be no doubt that a con- LAW FOR THE DENTIST. 
207 
tract to commit murder or any other crime, 
. ... is void, as against public policy. This 
contract docs not contemplate the commis- 
sion of a crime, or the doing of anything 
which is unlawful or contrary to good public 
morals. Even if it be conceded that the 
contract under its terms, offered some incen- 
tive to appellant to commit a crime, that 
would not necessarily render it void. . . . 
In conclusion the Illinois Supreme 
Court reversed a judgment rendered in 
the appellate court denying the appel- 
lant’s right to recover, and affirmed a 
previous judgment of the circuit court in 
favor of the appellant. Holding the con- 
tract valid and that the doctor was en- 
titled to payment in full under his con- 
tract. 
Summary. 
From the foregoing reviews, it is ap- 
parent that there is a sharp difference of 
opinion, relative to the legality of the 
contracts of medical men to furnish their 
patients services for life, between the 
American and English courts. It is 
clear that a contract of that kind made 
by a physician or surgeon would not 
stand in England, and arguing from 
analogy, and in view of the tenor of the 208 
LAW FOR THE DENTIST. 
language used in the English dental 
case reviewed, it seems too that such a 
contract made by a dentist would also he 
frowned upon in that country. 
However, in the light of Zeigler vs. 
Illinois, etc., the American medical case 
reviewed, a contract fairly entered into 
by a physician or surgeon to attend a 
patient for life would be enforceable in 
this country. It follows that the same 
rule would no doubt apply in the case of 
a dentist who contracted to furnish a 
patient dental services for life. This of 
course assuming, as in the medical case 
reviewed, that the contract was free from 
any taint of fraud and fairly performed.