Eastwood, Bigelow and Francis. The opinion of the court was delivered by Francis, J.c.c.
[21 NJSuper Page 22] Appellant, Joseph C. Nemitz, is a licensed optometrist of this State. On May 10, 1950 a complaint
seeking suspension or revocation of his license was filed with the New Jersey State Board of Optometrists, charging him with the violation of (1) R.S. 45:12-11(b), that is, gross incompetency, in that he supplied improper lenses, not in accordance with a prescription issued, (2) R.S. 45:12-11(c), that is, obtaining a fee by fraud and misrepresentation, in that "he failed to supply the finest lenses and frames in accordance with his offer which was relied on by the patient," and (3) R.S. 45:12-11(h), in that "he used misleading statements in advertising." Two hearings were held on these charges, the first on July 20, 1950, and the second and final one on November 7, 1951. The record contains a document, marked "Resolution," which recites:
"Now therefore, be it resolved, on this 19th day of December 1951, that the New Jersey State Board of Optometrists finds from the evidence, testimony and exhibits produced, as aforesaid, the said Joseph C. Nemitz, the holder of a license to practice Optometry, issued by the said Board pursuant to the provisions of Chapter 12 of Title 45 of the Revised Statutes, guilty of having violated the provisions of Section 45:12-11(b) of the Revised Statutes in that the said Joseph C. Nemitz, the holder of the aforesaid license, during April of 1950 did supply improper lenses to his patient, Mrs. Dorothy F. Wilson, not in accordance with a prescription issued by him, and guilty of having violated the provisions of Section 45:12-11(c) of the Revised Statutes in that the said Joseph C. Nemitz, the holder of the aforesaid license during the month of April 1950, did obtain a fee by misrepresentation and the practice of deception upon his patient Mrs. Dorothy F. Wilson, in that he failed to supply the finest lenses and frames in accordance with his offer, which was relied on by his patient the said Mrs. Dorothy F. Wilson and guilty of having violated the provisions of Section 45:12-11(h) of the Revised Statutes in that the said Joseph C. Nemitz, the holder of the aforesaid license during April 1950, did use misleading statements in his advertising, all of which is contrary to and in violation of the provisions of said Sections 45:12-11(b), 45:12-11(c) and 45:12-11(h) of the Revised Statutes; and the said Board for these reasons hereby suspends for a period of ninety (90) days, commencing February 1, 1952 and ending April 30, 1952, the license to practice Optometry issued to the said Joseph C. Nemitz."
From this suspension Nemitz appeals.
It is first argued that the evidence adduced at the hearings does not support the finding of guilt. The principal witness in support of the complaint was one, Dorothy F. Wilson, a patient of Dr. Emanuel C. Nurock. He had previously prescribed certain bifocal glasses for her, which cost $45. He is a member of the board and, as indicated, is referred to in the sworn complaint as assistant secretary thereof. In other places in the record he is variously referred to as secretary and assistant secretary.
It appears that Dr. Nurock made arrangements with Mrs. Wilson to assist him in an investigation of the defendant. He told her that there was some question of Dr. Nemitz' ethics. As he stated during one of the hearings, he explained to her that the defendant "was not doing things" in accordance with a certain offer he had made to a union with respect to eye examinations and the furnishing of glasses, and he asked her to go to Nemitz' office, arrange for an examination, obtain a prescription, and purchase the prescribed glasses.
In April, 1950 she visited defendant, was examined, and asked for and obtained a prescription. Then she went back later and received her glasses. The cost of the examination and glasses was $11.90, which sum she paid with money advanced by Dr. Nurock for the purpose and she turned over to him both prescription and glasses almost immediately. According to her testimony she heard that defendant had made some reduced price offer to the union of which she was a member, such as, an average cost of $9.90 for the glasses plus $1 for the examination. This was the extent of her knowledge of the plan; she called the union to find out more about it but "no one seemed to know." She made no statement that she mentioned the offer on her visit to the defendant. He examined her and recommended bifocals. She was given her choice of frames; no representations of any kind were made and no effort was made to sell her any particular product. She wore the glasses furnished for an hour before turning them over to Dr. Nurock; they were satisfactory;
she felt that they were correct and that she could have continued to wear them.
Over objection by defendant certain interrogatories, which had been served upon the board and answered by it, were received in evidence. Under the Civil Practice Rules (3:33, 3:26-4), subject to the rules of evidence, answers to interrogatories may be used to the same extent as a deposition of a party. Manifestly it would be improper in a court proceeding to permit the self-serving statements of a party to be introduced for the purpose of establishing his own cause. While an administrative agency is not a court and therefore the rules, as such, are not applicable, when the board sits in a quasi-judicial capacity, as in this case, if interrogatories are to be used, adherence to the rules with respect to their evidential competency would appear to be a worthwhile safeguard. Mulhearn v. Federal Shipbuilding and Dry Dock Co. , 2 N.J. 356 (1949); Welch v. County of Essex , 6 N.J. Super. 422, affirmed 6 N.J. Super. 184 (App. Div. 1950). However, we do not feel that prejudicial error resulted from their admission. It seems apparent that they were introduced simply to put in the record a copy of the plan offered by defendant to Mrs. Wilson's union, under which the members could have eye examinations and obtain glasses. Defendant, in his own testimony, identified the paper as an outline of his offer and said that he distributed it at a general union meeting on an occasion when he gave a lecture describing the plan. And he admitted that the union accepted the plan. Only two statements contained in the outline are involved particularly in this proceeding. They are:
"3. Average cost of a pair of single vision glasses is $6.80. Average cost of a pair of bifocal glasses is $8.90.
5. Finest quality lenses and frames used."
Only one other witness of importance was produced in support of the complaint. This person had been in the employ of the Bausch and Lomb Optical Company for about 20
years, first as a lens surface grinder and later as manager, but he was not an optometrist. He examined the glasses supplied to Mrs. Wilson under an instrument known as a Photometer, which measures the power of lenses. Then he compared his findings with the prescription issued by defendant and in his opinion there was a slight difference in the left lens. It was a "slight error," namely, one-eighth of a diopter, a diopter in lenses being the unit of refractive power. Such a difference can come about in the grinding of the lens; also examination of a lens on two different instruments might reveal a variance to this extent.
The witness identified the type bifocal lens appearing in the glasses as Kryptok. Upon being asked by a member of the board as to whether it was the finest type bifocal lens that could be used for a patient, he answered in the negative and said better and more expensive bifocals are made. However, he conceded that much depends on the individual preference of the optometrist; some consider one better than the other and a Kryptok will do the work of any other bifocal lens.
Dr. Nemitz testified that before releasing the glasses he examined the lenses on a Lensometer, which he described as similar to a Photometer, and found them to be accurate in relation to the prescription. In any event, a variance of one-eighth of a diopter in a lens would be within the recognized limits of tolerance; it would have no effect on efficiency and would not be considered inconsistent with the prescription. Also, before turning the glasses over to the patient he had her try them; she reacted very favorably to the test, made no complaints and said they were satisfactory.
With respect to the quality of the lenses and the frames, he said that while more expensive types are available, the ones he used were of the finest quality and as efficient as other types. In his judgment what is the finest lens is a matter of opinion. And, in any event, in dealing with Mrs. Wilson, he simply showed her the type frames he had available, made no recommendations with respect to them and she made her own selection.
On this record, the defendant was found guilty of gross incompetence, obtaining a fee by misrepresentation, and of misleading advertising. Our review has led us to the conclusion that the result cannot be sustained.
A first consideration is the nature of the review we should allow in this type proceeding. Under the statute the "court is * * * authorized and empowered to review and correct the action of the Board." (R.S. 45:12-14). Whether an appellate court in reviewing an administrative agency determination should apply the test of the greater weight of the evidence, or substantial evidence on the whole record, or substantial evidence, or just some evidence, has been a controversial problem throughout the country for many years. Davis on Administrative Law, c. 20, p. 868; Report of Attorney General's Committee on Administrative Procedure (1941); Senate Document No. 8, 77 th Congress , 1 st Session (1941). On the federal scene the Administrative Procedure Act settled the formula to be applied, namely, is the judgment or order supported by "substantial evidence"? And in reaching that determination the court "shall review the whole record or such portions thereof as may be cited by any party." 60 Stat. 243, 5 U.S.C.A., sec. 1009. New Jersey has not adopted such an act, although one containing the same scope of review has been proposed. In re Larsen , 17 N.J. Super. 564, concurring opinion on p. 574 (App. Div. 1952). Under the Rules of Civil Practice we are authorized to make independent fact findings "to such extent as the interests of justice may require" (3:81-13) and it has been suggested that the power should be exercised cautiously, at least in passing upon the "finding of an experienced agency of demonstrated competence." In re Larsen, supra, p. 577. In any event, in the present problem, putting aside the rule and testing the evidence in the crucible of substantial evidence, the determination of the board cannot be supported.
No expert witness was produced in opposition to the testimony of the defendant. The record is barren of any evidence to show that a variance ...