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Bruce v. Dept. Registration & Education

OPINION FILED FEBRUARY 1, 1963.

RAYMOND C. BRUCE, APPELLANT,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL., APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS E. KLUCZYNSKI, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

This is an administrative review action begun by the plaintiff, Raymond C. Bruce, a dentist licensed in 1923. Plaintiff, on the relation of the secretary of a committee of the Chicago Dental Society, was charged with violating the Dental Practice Act, (Ill. Rev. Stat. 1953, chap. 91, par. 62) in 1954 and several years prior thereto by professionally associating with a dental laboratory technician, one Martin Dorner doing business as Capitol Dental Laboratories and Dorner Dental Laboratories. After numerous hearings before the Dental Examining Committee, the Director of Registration and Education entered an order revoking the license of the plaintiff. An administrative review action was filed in the circuit court and said order was affirmed. This is an appeal from the judgment of the circuit court. We have jurisdiction by virtue of section 7h of the Dental Practice Act.

The plaintiff was licensed to practice as a dentist in 1923 after graduation from Northwestern Dental School. He practiced continuously in Chicago as a dentist except for a ten-year period when he was in the linen supply business. In 1949 he purchased certain dental equipment and laboratory supplies from a Dr. Maas and took over Dr. Maas's practice at 3241 1/2 North Ashland located in the same building with Dorner's dental laboratory. Plaintiff testified that Dorner did all of his laboratory work. He testified, however, that he never had patients referred to him by Dorner and that none ever came to him as a result of an advertisement of Dorner's laboratory in the Chicago Red Book classified telephone directory. The plaintiff admitted that in 1950 dentures were once displayed in the sidewalk show window, but he stated that immediately upon noticing these displays, which he stated were made by Dorner, he insisted that they be removed.

Martin Dorner testified at the initial hearing held on September 27, 1954, that he had been a dental technician for 31 or 32 years. He stated that in 1949 or 1950 he leased premises at 3241 1/2 North Ashland Avenue for his dental laboratory and the plaintiff leased adjoining premises at the same address for his dental office. In 1952 he moved to 3326 North Ashland, a building he owns, and the plaintiff also moved, renting 3 rooms from Dorner at $100 a month rent. The names of both the plaintiff and Dorner were on the front of these two locations with common office hours stated. They used a common front entrance and reception room. Each man had his own equipment and telephone.

Dorner stated that he had been advertising in the Chicago Red Book for several years, using quarter page ads similar to one that was introduced into evidence. He asserted, however, that this advertising was only for the purpose of obtaining work from dentists. It was admitted that at the time of the hearing the plaintiff was Dorner's only customer and he could not remember when he had done work for another dentist.

The relator, Edgar Stephens, the secretary of the Legislation & Law Enforcement Committee of the Chicago Dental Society, called as a witness Mrs. F.E. Freedlund, the widow of a dentist and an employee of the Chicago Dental Society. She testified that she was sent to the plaintiff's office by the attorney for the relator "to look around" and "to make a report." She testified that nobody in that laboratory did any work or collected any money from her except Dr. Bruce. Dorner did not contact this witness in any manner.

After the hearing on September 27, 1954, the committee recommended that the case be dismissed.

On January 10, 1955, the relator, without any prior notification to the plaintiff, moved that the case be reopened to hear newly discovered evidence, which request was granted ex parte. The plaintiff was thereafter notified to appear on February 7, 1955, for further hearing upon the complaint. The precise nature of the evidence that the relator intended to present was not disclosed.

At the hearing on February 7, 1955, a new witness, Evelyn Sankiw, who had recently been employed by the American Medical Association and who had been a dental assistant, was called by the relator. She testified that in December, 1954, she was recommended to Capitol Dental Laboratory by a former patient of Dr. Bruce's who had had work done there. She stated that she found the telephone number of the laboratory in the Red Book and called for an appointment on December 10. She stated that Dorner met her in the reception room and acknowledged that she had made the appointment with him. According to this witness, Dorner showed her dentures and quoted prices and that the sum of $150 was agreed upon. Thereafter she went into the plaintiff's office and the plaintiff took impressions of her mouth. Dorner later returned to assist in the examination and, according to Miss Sankiw, put his fingers inside her mouth. She also stated that the plaintiff asked Dorner's advice with reference to the necessity of an operation to remove a growth on the lower portion of her mouth. Approximately six days later she returned for a "try-in", also conducted, according to Miss Sankiw, in part by Dorner who again examined her face and mouth. Later she returned and picked up the completed dentures.

She further testified that she was dissatisfied with the dentures, returned to the plaintiff's office and complained, and finally, after the dentures continued to be unsatisfactory, complained to the Chicago Dental Society. The plaintiff then refunded the full purchase price of $150 which had been paid to him.

Plaintiff's counsel objected to the Sankiw testimony on the ground that it purported to cover events which occurred after the time mentioned in the complaint, February 4, 1954, and prior thereto, but he did cross-examine this witness subject to the objection. Plaintiff's counsel asked this witness the name of Dr. Bruce's former patient who allegedly sent her to the laboratory, but the board ruled that she was not required to identify that person.

The plaintiff denied that Dorner put his fingers in Miss Sankiw's mouth in plaintiff's presence. He stated that she made the appointment over the telephone with him and that he met her in the reception room and showed her sample dentures outside Dorner's presence, that she selected one for $150, that she paid him and he gave her a receipt. Dorner was called in, according to the plaintiff, for consultation on how the plaintiff wanted the teeth arranged.

At the February 7th hearing the relator was given permission to subsequently file an amended complaint and plaintiff was granted five days after the filing of the amended complaint to ask for a further hearing. The board ordered that the evidence offered theretofore "shall be received in proof of violation of the amended complaint." Later, on February 14, 1955, the amended complaint dated February 11, 1955, was filed, which was substantially similar to the original complaint, but with changed dates. The plaintiff did not request any further hearing. Upon the board's recommendation the Department of Registration revoked the plaintiff's license on May 26, 1955. This order was reversed and remanded by the circuit court of Cook County which found that "because of the amended complaint having been filed subsequent to the hearing held thereon, the plaintiff should be given an opportunity to adequately defend said charges."

At a subsequent hearing held before the committee on November 17, 1958, the plaintiff's attorney said with reference to a future hearing "May we stipulate that any witnesses that testified in the original case be available for additional cross-examination?" and the legal adviser for the Examining Committee responded "Yes, I think that is fair" and directed, apparently to both attorneys, "You have your witnesses here and they be available for ...


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